Joshua 362 v. North Adams, City of (SPR 20232300)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 10, 2023 SPR23/2300 Carrie Burnett Primary Records Access Officer City of North Adams 10 Main Street North Adams, MA 01247 Dear Ms. Burnett: I have received the petition of Joshua (“requestor”) appealing the response of the City of North Adams (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 7, 2023, the requestor sought the following: [1] Any and all records, whether in electronic, hard copy, or any other format, that are in the possession of the City of North Adams and the North Adams Police Department (NAPD) regarding any internal affairs investigation (I.A.) reports concerning NAPD . . . from August 1, 2023, and the time of response to this request. These records include but are not limited to written I.A. reports, memoranda, emails (and email attachments), notes, text messages, and telephone records. [2] Any and all records, whether in electronic, hard copy, or any other format, that are in the possession of the City of North Adams and the North Adams Police Department (NAPD) regarding any disciplinary records concerning NAPD . . . from August 1, 2023, and the time of response to this request. These records include but are not limited to written disciplinary reports, memoranda, emails (and email attachments), notes, text messages, and telephone records. [3] Any and all records, whether in electronic, hard copy, or any other format, that are in the possession of the City of North Adams and the North Adams Police Department (NAPD) regarding any materials sent the Massachusetts Peace Officer Standards and Training Commission regarding NAPD . . . from August 1, 2023, and the time of response to this request. These records include but are not limited to written disciplinary reports, memoranda, emails (and email attachments), notes, text messages, and telephone records[.] 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

Carrie Burnett SPR23/2300 Page 2 October 10, 2023 Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2278 Determination of the Supervisor of Records (September 26, 2023). In my September 26th determination, I closed the appeal after I learned that the City had provided a response on September 23, 2023. In the City’s September 23rd response, it provided responsive records with redactions pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR23/2300, 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. Att’y 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. 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 City’s September 23rd response In its September 23, 2023 response, the City states that it has redacted responsive records pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Current Appeal In his current appeal, the requestor claimed that the City did not meet its burden to redact the responsive records, and that the City did not provide all the responsive records. Exemption (c) Exemption (c) applies to:

Carrie Burnett SPR23/2300 Page 3 October 10, 2023 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). 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). 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. 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). When analyzing a privacy claim, there is 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. Under Exemption (c), the City argues the following: It is the City’s contention that said sections are exempted from release pursuant to M.G.L. c. 4, § 7(26)(c) (“personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy”). In addition to the redactions, the City contends that any documents that may be existence that are directly related to any personnel action are exempted from release pursuant to M.G.L. c. 4, § 7(26)(c) (“personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy”).

Carrie Burnett SPR23/2300 Page 4 October 10, 2023 Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City must identify the records in its possession that were withheld from disclosure. The City’s September 23rd response did not contain the specificity required in a denial of access to public records. The City merely cites Exemption (c) without any explanation of the applicability of the exemption to the responsive records. The City is not permitted to issue a blanket denial without providing any further information with respect to the requested records. The City 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 in order to comply with the Public Records Law and its Regulations. Further, it is unclear how portions of the records can be withheld in their entirety. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). In light of the requestor’s petition, it is unclear if the City possesses additional records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the City must clarify whether any additional responsive records exist. Conclusion Accordingly, the City is ordered to provide a response to the requestor, 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.

Carrie Burnett SPR23/2300 Page 5 October 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Joshua