Christopher Nesbitt v. Methuen, City of - Police Department (SPR 20232834)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 7, 2023 SPR23/2834 Brittany Getchell Court Clerk Methuen Records Department 90 Hampshire Street Methuen, MA 01844 Dear Ms. Getchell: I have received the petition of Christopher Nesbitt appealing the response of the Methuen 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 November 20, 2023, Mr. Nesbitt requested, “any dispatch information including CAD and audio of phone call…as well as any associated body camera footage” related to a specific incident. The Department provided a response on November 22, 2023. Unsatisfied with the response, Mr. Nesbitt petitioned this office and this appeal, SPR23/2834, was opened as a result. While this appeal was pending, the Department provided a supplemental response on November 27, 2023. 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

Brittany Getchell SPR23/2834 Page 2 December 7, 2023 The Department’s November 22nd and November 27th response In its November 22, 2023 response, the Department provided Mr. Nesbitt with a redacted dispatch CAD log and a redacted incident report. The Department cited Exemption (c) of the Public Records Law in support of its redactions. G. L. c. 4, § 7(26)(c). In its November 27, 2023 supplemental response, the Department explained, “the subject redactions are justified in their entirety and correctly predicated upon the provisions of M.G.L. c. 4, § 7(26)(c), as the redactions contain sensitive personal identifying information not subject to public disclosure, particularly dates of birth, license numbers, and phone numbers of specifically named individuals.” 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). 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

Brittany Getchell SPR23/2834 Page 3 December 7, 2023 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, to the extent that the records contain personal phone numbers and license numbers, the Department may permissibly withhold such portions from disclosure. However, the Department has not demonstrated that the additional redacted information, such as dates of birth, constitute intimate details of a highly personal nature or that the disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining this information outweighs the seriousness of any invasion of privacy. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Nesbitt with a response 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. Sincerely, Manza Arthur Supervisor of Records cc: Christopher Nesbitt