Mass Accountability Network v. Swampscott, Town of - Town Clerk (SPR 20240729)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 25, 2024 SPR24/0729 Jared LaLiberte Town Clerk/Record Access Officer Town of Swampscott 22 Monument Avenue Swampscott, MA 01907 Dear Mr. LaLiberte: I have received the petition of Massachusetts Accountability Network (“requestor”) appealing the response of the Town of Swampscott (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 15, 2023, the requestor sought the following records: [1] ... all 911 or non emergency calls made for a call from Aggregate Industries for the police to show up for a man taking pictures and/or video. [2] ... any BWC footage from Officer ... and any police/incident reports made. Prior Appeals The requested records were the subject of prior appeals. See SPR23/2220 Determination of the Supervisor of Records (September 29, 2023); SPR23/2673 Determination of the Supervisor of Records (November 20, 2023); SPR23/3136 Determination of the Supervisor of Records (January 16, 2024); SPR24/0135 Determination of the Supervisor of Records (January 30, 2024) and SPR24/0295 Determination of the Supervisor of Records (February 14, 2024). In my February 14th determination, I learned that the Town was to provide a further response to the requestor. The Town provided a response on February 28, 2024. Unsatisfied with the Town’s response, the requestor petitioned this office and this appeal, SPR24/0729, 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 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

Jared LaLiberte SPR24/0729 Page 2 March 25, 2024 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. 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 28th response In its February 28, 2024 response, the Town provided the bodycam footage and cited Exemption (c) in support of the redactions. 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 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. 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). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of

Jared LaLiberte SPR24/0729 Page 3 March 25, 2024 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 its response, the Town asserts, “[the Town] ... provided the bodycam footage requested, however, the bodycam footage provided has been redacted under Massachusetts General Laws regarding public records release exemptions, MGL Ch 4 Sec 7 (26)(c) Personal Identifying information.” Based on the Town’s response, it is unclear how the redacted records contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Town did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide the requestor with a response to the request, provided 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. The requestor may 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: Massachusetts Accountability Network