Celeste Hedequist v. Wellesley, Town of - Police Department (SPR 20232576)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 10, 2023 SPR23/2576 Cheryl Carlson Records Manager Wellesley Police Department 485 Washington Street Wellesley, MA 02482 Dear Ms. Carlson: I have received the petition of Celeste Hedequist appealing the response of the Wellesley 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 25, 2023, Ms. Hedequist requested, “… the names of all donors to the [Department] and the amount of the donation from 2016 until present.” On October 25, 2023, the Department provided Ms. Hedequist with a response, denying her request for the names of some of the donors pursuant to Exemption (c) of the Public Records Law. As a result of the October 25th response, Ms. Hedequist petitioned the Supervisor of Records, and this appeal was opened. 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

Cheryl Carlson SPR23/2576 Page 2 November 10, 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 October 25th response The Department’s October 25, 2023 response indicates, The [D]epartment received an anonymous donation totaling $40,000 ($10,000 each fiscal year) beginning in fiscal year 2020 to the present for the acquisition and care of the Department’s comfort dog Winnie … The [D]epartment received an anonymous donation in the amount of $150,000 in fiscal year 2022 and an anonymous donation in fiscal year 2023 for $120,000… The names of the anonymous donors have been withheld under Exemption [c] – Personal Privacy Exemption. . . . The names of the anonymous donors are not readily available from other sources. Therefore, we believe the privacy interest outweighs any public interest in the production of this information. 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 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.

Cheryl Carlson SPR23/2576 Page 3 November 10, 2023 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. Specificity in Claiming Exemptions Based on the Department’s response, it is unclear how the withheld names of donors that provided monetary funds to the Department constitute intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. The Department’s October 25th response states, “[t]he names of the anonymous donors are not readily available from other sources. Therefore, we believe the privacy interest outweighs any public interest in the production of this information.” However, based on the Department’s response and with regard to the balancing test in PETA, the Department has not demonstrated how the privacy interest at issue outweighs the public interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. See PETA, 477 Mass. at 292. Consequently, I find the Department did not meet its burden of specificity in claiming Exemption (c) to withhold certain information from disclosure. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. 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 in order to comply with the Public Records Law and its Regulations. C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, the Department is ordered to provide Ms. Hedequist with a response to her request 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. Ms. Hedequist may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Cheryl Carlson SPR23/2576 Page 4 November 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Celeste Hedequist