Kent DeMott v. Leominster, City of - Police Department (SPR 20240206)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 5, 2024 SPR24/0206 Matthew R. Fallon Police Sergeant Leominster Police Department 29 Church Street Leominster, MA 01453 Dear Sergeant Fallon: I have received the petition of Kent DeMott appealing the response of the Leominster 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 January 11, 2024, Mr. DeMott requested “copies of all video and audio” from a specific police report. The Department provided a response on January 23, 2024. Unsatisfied with the response, Mr. DeMott petitioned this office and this appeal, SPR24/0206, 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. 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

Matthew R. Fallon SPR24/0206 Page 2 February 5, 2024 The Department’s January 23rd response In its January 23, 2024 response, the Department cites Exemption (c) of the Public Records Law to redact the requested 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). 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. Citing Exemption (c), the Department states the following: Please be advised that I have redacted (muted) portions of the video in accordance with Exemption C of G.L. chapter 4 sec. 7, as I believe the information that I

Matthew R. Fallon SPR24/0206 Page 3 February 5, 2024 redacted clearly relates to [named individual]’s personal information. [Named individual] reveals information to our clinician that I believe are intimate details of a highly personal nature. I believe disclosure of this information to you, her neighbor, may constitute an unwarranted invasion of personal privacy. I do not believe there is a paramount public interest in the disclosing of this information. Based on the Department’s response, the Department has not demonstrated that disclosure of the redacted 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, although the Department states that it does not “. . . believe there is a paramount public interest in the disclosing of this information[,]” the Department did not provide any supporting information to demonstrate how any privacy interest substantially outweighs the public interest in obtaining the requested information. See Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. DeMott 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: Kent DeMott