Daniel Narreau v. Palmer, Town of - Police Department (SPR 20231795)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 17, 2023 SPR23/1795 Chief Christopher Burns Chief of Police Palmer Police Department 4419 Main Street Palmer, MA 01069 Dear Chief Burns: I have received the petition of Daniel Narreau appealing the response of the Palmer Police Department (Department) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On April 4, 2023, Mr. Narreau requested the following records: [1] Copies of public records including a police report filed on or about January 16, 2020 at approximately 15:00 hours [and] any follow up reports of the same matter. By . . . and any ‘property manager’ along with National Grid Electric in regards to the following address in question . . . Church Street Thorndike, MA . . ., [and] any and all email correspondence and documents related to this matter from January 1, 2020 to present date of this request. Previous appeals This request was the subject of previous appeals. See SPR23/0737 Determination of the Supervisor of Records (April 27, 2023) and SPR23/1227 Determination of the Supervisor of Records (June 21, 2023). In my June 21st determination, I found that the Department did not meet its burden to redact certain information under Exemption (c) of the Public Records Law. The Department provided a response on July 31, 2023. Unsatisfied with the response, Mr. Narreau petitioned this office and this appeal, SPR23/1795, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A (d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Chief Christopher Burns SPR23/1795 Page 2 August 17, 2023 municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Department’s July 31st response In its July 31, 2023 response, the Department provided revised redacted records, but continued to cite Exemption (c) of the Public Records Law in support of certain redacted information. Current appeal In his appeal, Mr. Narreau stated the following: Please appeal yet again this report as the agency failed to provide an unredacted police report as required by the decision. We are requesting what specifically the complaint told the officer about National Grid. There is no sensitive information believed to be in the document. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal

Chief Christopher Burns SPR23/1795 Page 3 August 17, 2023 sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In its response, the Department stated the following: Exemption (c): This exemption applies to any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy (i.e. DOB, Social Security Number, other personal identifying information). To the extent that the redacted records contain a social security number, I find that the Department may withhold such information from disclosure. However, the Department has not demonstrated that the additional redactions contain intimate details of a highly personal nature or that disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the redacted information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Department must clarify these issues. Further, it is uncertain what “other personal identifying information” has been redacted from the records. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption).

Chief Christopher Burns SPR23/1795 Page 4 August 17, 2023 Conclusion Accordingly, the Department is ordered to provide Mr. Narreau with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Narreau may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Daniel Narreau