Russell Williston v. Lancaster, Town of (SPR 20240085)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 25, 2024 SPR24/0085 Kathleen Rocco Records Access Officer Town of Lancaster 701 Main Street Lancaster, MA 01523 Dear Ms. Rocco: I have received the petition of Russ Williston, appealing the response of the Town of Lancaster (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 21, 2023, Mr. Williston requested the following records: At the end of the 11/20/2023 6PM Select Board Meeting, during an agenda item about the “Historical Commission Inventory”, [a named individual] distributed a package to the board. I’d like to request a copy of that packet. Prior Appeal This request was the subject of a prior appeal. See SPR23/2945 Determination of the Supervisor of Records (December 20, 2023). In my December 20th determination, I found that the Town did not meet its burden to withhold the records, in their entirety, under Exemption (f). The Town responded on January 2, 2024. Unsatisfied with the response, Mr. Williston petitioned this office and this appeal, SPR24/0085, 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 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

Kathleen Rocco SPR24/0085 Page 2 January 25, 2024 order to withhold a requested record. G. L. c. 66, § 10(d)(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). 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. Current appeal In his appeal, Mr. Willison states, “[t]he response I received cited 4 exemptions in withholding the requested records… Two exemptions referred to specific instances in the documents that do not merit withholding them in their entirety.” The Town’s January 2nd Response In its January 2, 2024 response, the Town cited Exemptions (c), (f), and (o) of the Public Records Law and the Open Meeting Law to withhold the responsive records. 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).

Kathleen Rocco SPR24/0085 Page 3 January 25, 2024 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 Town states, “[o]ne of the records include highly intimate details, including information about an individual’s marital status. Marital status has been deemed to be an ‘intimate detail.’… There is no public interest in disclosing the individual’s marital status. The individual could feel embarrassed by disclosure of this information. While this information may be available from other sources, any public interest in the disclosure of this individual’s marital status likely does not outweigh the privacy interest because this information would not shed light on whether a government official was carrying out their duties in a law- abiding and efficient manner. The balance swings in favor of non-disclosure.” To the extent that the records contain marital status information of an identified individual, the Town may permissibly withhold those portions from disclosure. However, it is unclear how the records in their entirety constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. Also, the Town did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Town must clarify these matters. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential

Kathleen Rocco SPR24/0085 Page 4 January 25, 2024 investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. Under Exemption (f), the Town states, “the three records at issue are part of an open and active law enforcement investigation. Town employees have consulted with the Police Town who confirmed that disclosure of these records could significantly taint the Town’s ability to investigate the incident because it could alert suspects to the scope and nature of the investigation, which is still in its infancy. Disclosure of these records would not be in the public interest.” Although the Town claims it has an open investigation regarding the requested records, it is unclear how the records, in their entirety, can be withheld under Exemption (f). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (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). The Town must clarify whether segregable portions can be provided. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, Town, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o) (emphasis added). Under Exemption (o), the Town states, “[o]ne of the three records includes photographs of an appointed employee’s home. These photographs could be used to identify the home address of the appointed employee.”

Kathleen Rocco SPR24/0085 Page 5 January 25, 2024 Based on the Town’s response, it is unclear how the photograph is a type of information that can be withheld under Exemption (o) of the Public Records Law. The Town must clarify this matter. Further, although the Town states that it is withholding three records, it is unclear what specific records the Town is withholding. See G. L. c. 66, § 10(b)(iv) (a 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. Open Meeting Law The Town also raises issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). The Town is advised that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office. See G. L. c. 30A, § 23. In the response, the Town states, “[n]otwithstanding [a named individual]’s distribution of the package to the Board, the record of the meeting is clear that the packet was not used by the Board in the meeting as the Chair adjourned the meeting before discussion occurred. As such, the records are not public by nature of the Open Meeting Law.” Based on the Town’s response, it is unclear if the Town is citing the Open Meeting Law to withhold the records in their entirety. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Williston 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: Russ Williston