Joseph Viglione v. Wilmington, Town of - Police Department (SPR 20232229)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 28, 2023 SPR23/2229 Susan M. O’Neil Senior Clerk Wilmington Police Department 1 Adelaide Street Wilmington, MA 01887 Dear Ms. O’Neil: I have received the petition of Joe Viglione appealing the response of the Wilmington 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 September 18, 2023, Mr. Viglione requested “any police reports regarding [two named individuals] in the past 30 days.” On September 19, 2023, the Department provided a response and indicated that it was withholding responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department’s response, Mr. Viglione petitioned this office and this appeal, SPR23/2229, 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) (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). 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

Susan M. O’Neil SPR23/2229 Page 2 September 28, 2023 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s September 19th response In its September 19, 2023 response, the Department claims that it is withholding the arrest reports under the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167 and G. L. c. 66, § 10(B) as they operate through Exemption (a), and Exemption (c) of the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 3 77 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Criminal Offender Record Information The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge,

Susan M. O’Neil SPR23/2229 Page 3 September 28, 2023 an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. G. L. c. 66, § 10(B) states in relevant part: The home address, personal email address and home telephone number of law enforcement, judicial, prosecutorial, department of youth services, department of children and families, department of correction and any other public safety and criminal justice system personnel, and of unelected general court personnel, shall not be public records in the custody of the employers of such personnel or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed, but such information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180 or to criminal justice agencies as defined in said section 167 of said chapter 6. The name, home address, telephone number and personal email address of a family member of any such personnel shall not be public records in the custody of the employers of the foregoing persons or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed. The home address, telephone number, personal email address or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name, home address, telephone number, personal email address or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be

Susan M. O’Neil SPR23/2229 Page 4 September 28, 2023 disclosed. G. L. c. 66, § 10(B). Based on the Department’s response, I find it has not met its burden of specificity in claiming the CORI Act and G. L. c. 66, § 10(B) operating through Exemption (a), to withhold the requested records in their entirety. The Department merely cites the CORI Act and G. L. c. 66, § 10(B) without any further explanation as to its applicability to the responsive records. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. G. L. c. 66, § 10(b)(iv). As such, based on the Department’s response, it is unclear how the statutes specifically or by necessary implication permit it to withhold the records in their entirety. Exemption (c) Exemption (c) applies to: 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 sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same info1mation 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). 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 September 19, 2023 response, the Department stated the following:

Susan M. O’Neil SPR23/2229 Page 5 September 28, 2023 The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interest involved outweighs the public interests in the disclosure of that information. In making that determination, the department has considered the following factors: (1) whether disclosure would result in personal embarrassment to and 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. The requested records contain medical information of a specifically named individual. The privacy interests involved outweigh the public interests in the disclosure of that information. As a result, such information must be withheld under the law. To the extent that the records contain medical information of a specifically named individual, the Department may permissibly withhold such portions from disclosure. However, it is uncertain how the records, in their entirety, contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Nor it is clear whether this information is available from other sources. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). As a result, I find that the Department did not meet its burden of specificity in claiming Exemptions (a) and (c) of the Public Records Law to withhold the responsive records from disclosure. Conclusion Accordingly, the Department is ordered to provide Mr. Viglione with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. Sincerely, Manza Arthur Supervisor of Records cc: Joe Viglione