Nathaniel Story v. Manchester by the Sea, Town of - Police Department (SPR 20232706)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2023 SPR23/2706 Sergeant Jennifer Gilson Records Access Officer Manchester by the Sea Police Department 10 Central Street Manchester by the Sea, MA 01944 Dear Sergeant Gilson: I have received the petition of Nathaniel Story appealing the response of the Manchester by the Sea 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 8, 2023, Mr. Story requested, “all emails, including any attachments, sent by any manchester.ma.us email address to the address: . . . between the dates 9/30/2021 to present.” The Department responded on September 21, 2023, and provided records, including two spreadsheets. Mr. Story sent a modified request on September 21, 2023 and stated, “[t]hose spreadsheets have been redacted to remove two columns: Disposition and Discipline. I am now seeking those two spreadsheets in their entirety, without any redactions.” Prior Appeal This request was the subject of a prior appeal. See SPR23/2385 Determination of the Supervisor of Records (October 18, 2023). In my October 18th determination, I found that the Department had not met its burden to redact two spreadsheets under Exemption (c) of the Public Records Law. The Department responded on November 2, 2023. Unsatisfied with the Department’s response, Mr. Story petitioned this office and this appeal, SPR23/2706, 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

Sergeant Jennifer Gilson SPR23/2706 Page 2 November 21, 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. 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 Department’s November 2nd Response In its November 2, 2023 response, the Department reiterated Exemption (c) of the Public Records Law to redact two columns labeled “Disposition” and “Discipline” on the charts that were submitted to the POST Commission. 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). 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.

Sergeant Jennifer Gilson SPR23/2706 Page 3 November 21, 2023 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. Under Exemption (c), the Department states: [The Department] believes that it has adequately explained the bas(es) for its invocation of Exemption (c) (G.L. c. 4, §7(26)(c)) to support the limited redactions made to the provided records… In particular, in the Mack case, the SJC is specifically considering whether “the Legislature’s grant of authority to [the POST Commission] was intended to create the exclusive avenue for members of the public to obtain access to the names of law enforcement officers under investigation.” Given the issues presented and currently being considered by the SJC in this active case, and the absence of clear judicial interpretation of Exemption (c) as applicable to your request, the Town and its Police Department continue to maintain that they appropriately redacted certain disciplinary information from the records provided to you. Until such time as either the courts or the Supervisor of Records determines the full scope and extent of the application of the revisions to Exemption (c), it is [the Department]’s position that it may appropriately continue to redact (or where appropriate withhold entirely) disciplinary documentation and information pursuant to Exemption (c). Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor:

Sergeant Jennifer Gilson SPR23/2706 Page 4 November 21, 2023 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. With respect to Mr. Story’s records request, these requested records are the subject of a dispute in active litigation. See Eric Mack v. Office of the District Attorney of the Bristol District No. SJC-13468. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Nathaniel Story