Brenda Eckstrom v. Wareham, Town of - Town Administrator (SPR 20240684)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 18, 2024 SPR24/0684 Derek D. Sullivan Town Administrator Town of Wareham Memorial Town Hall 54 Marion Road Wareham, MA 02571 Dear Mr. Sullivan: I have received the petition of Brenda Eckstrom appealing the response of the Town of Wareham (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 30, 2023, Ms. Eckstrom requested: [1.] a copy of every waiting list for every location (identified) in Wareham that the Town offers bench placement [2.] a copy of any letters or emails written to the Town requesting to donate a bench or requesting the placement of a bench that got them on “the list” [3.] any correspondence from the Town Administrator’s office, or any other office authorized, to [identified individuals] explaining the process for getting a memorial bench placed and the reason their requests were denied or placed on a waiting list [4.] a copy of the letter written by [an identified individual] sometime around 2019 – 2020 requesting the slat bench that was put in during the summer of 2020 [5.] a copy of charges and payment for the slat bench that was granted by the Select Board, in 2020, and its recent repairs that [an identified individual] spoke of at Town Meeting (because it was put in without proper footing) and who paid for the bench, the installation, who oversaw the installation and who paid for the repairing of the footing. 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

Derek D. Sullivan SPR24/0684 Page 2 March 18, 2024 Previous Appeals The requested records were the subject of previous appeals. See SPR23/2782 Determination of the Supervisor of Records (November 30, 2023) and SPR24/0193 Determination of the Supervisor of Records (February 6, 2024). In my February 6, 2024 determination, I ordered the Town to provide an explanation for the fee estimate. The Town provided responses without charge on February 29, 2024 and March 5, 2024. Unsatisfied with the responses, Ms. Eckstrom petitioned this office and this appeal, SPR24/0684, 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. See 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. 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 Town’s February 29th and March 5th Responses On February 29, 2024, the Town stated, “[a]ttached is the response to your records request. Redactions were made under Exemption C but names were not redacted.” On March 5, 2024, the Town stated, “[p]lease see attached responsive docs. The redactions are not the names but personal information made under Exemption C.” 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

Derek D. Sullivan SPR24/0684 Page 3 March 18, 2024 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 Property 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. In citing Exemption (c) to redact the records, the Town did not provide any analysis or facts to support the application of Exemption (c) to the records. It is also unclear how the information redacted are details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. See 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. Conclusion Accordingly, the Town is ordered to provide Ms. Eckstrom with a response to the request 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. Ms. Eckstrom may

Derek D. Sullivan SPR24/0684 Page 4 March 18, 2024 appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Brenda Eckstrom