Nathaniel Story v. Truro, Town of - Police Department (SPR 20232219)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 22, 2023 SPR23/2219 Jamie M. Calise Chief of Police Truro Police Department 344 Route 6 Truro, MA 02666 Dear Chief Calise: I have received the petition of Nathaniel Story appealing the response of the Truro Police Department (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 7, 2023, Mr. Story requested “…all emails, including any attachments, sent by any truro-ma.gov email address to the address: POSTCReports@mass.gov between the dates 9/30/2021 to present.” On September 14, 2023, the Department responded and provided responsive records with redactions. The Department provided a further response on September 18, 2023, explaining that the redactions were made pursuant to Exemption (c) of the Public Records Law. Unsatisfied with the Department’s responses, Mr. Story petitioned this office and this appeal, SPR23/2219, 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 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. 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 Jamie M. Calise SPR23/2219 Page 2 September 22, 2023 The Department’s September 14th and 18th responses In its September 14, 2023 response, the Department provided responsive records with redactions. In its September 18, 2023 response, the Department stated that it had redacted responsive records pursuant to Exemption (c) of the Public Records Law. The Department stated the following: After review of your request and the Department’s records, it was determined that the Department had certain records responsive to your request. These were provided to you on September 14, 2023, at no charge, as a courtesy, on that occasion only. After an assessment of the Department’s records, personnel information of specifically identified individuals contained in the charts submitted to the POST Commission were redacted pursuant to Exemption (c) of the Public Records Law. Exemption (c) to the Public Records Law, G.L. c. 4, §7(26)(c) covers “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…” G.L. c. 4, §7(26)(c). . . . Here, careful consideration was given to the application of Exemption (c) to the redacted charts. This includes legal matters related to the POST Commission that are pending in Massachusetts courts. In balancing these interests, the Department has concluded that it is appropriate to minimally redact certain personnel information from the enclosed charts under Exemption (c) while providing the remaining information previously submitted to POST. Neither the Supervisor nor any Court has interpreted exactly how far the amendments to Exemption (c) are intended to extend. Until such time, it is the Department’s position that the limited redactions made to the records provided to you are appropriate under Exemption (c) and the case law and Supervisor’s interpretation to Exemption (c) in its 2022 Guide cited above at p. 17. Current appeal In his appeal, Mr. Story claims that the Department did not meet its burden to redact the responsive records. 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.

Chief Jamie M. Calise SPR23/2219 Page 3 September 22, 2023 G. L. c. 4, § 7(26)(c). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 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. Based on the Department’s response, I find it has not met its burden to redact information from the responsive records. Specifically, where the amendment to Exemption (c) states that this, “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the requested records can be redacted under Exemption (c). The Department must clarify this matter.

Chief Jamie M. Calise SPR23/2219 Page 4 September 22, 2023 Conclusion Accordingly, the Department is ordered to provide Mr. Story 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 the response to this office at pre@sec.state.ma.us. Mr. Story 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: Nathaniel Story