Michelle Efendi v. Boston, City of - Public Records (SPR 20241115)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2024 SPR24/1115 Shawn A. Williams, Esq. Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Michelle Efendi appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 5, 2024, Ms. Efendi requested “…all police reports where the City of Boston is listed as the Victim. These may include offense/incident reports. I am seeking reports between the dates of January 1, 2022 - June 30, 2022.” The City provided responses on March 18, 2024 and April 9, 2024. Unsatisfied with the City’s responses, Ms. Efendi petitioned this office and this appeal, SPR24/1115, was opened as a result. Subsequently, on April 17, 2024 and April 29, 2024 the City provided supplemental responses. 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 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

Shawn A. Williams, Esq. SPR24/1115 Page 2 April 30, 2024 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 City’s March 18th, April 9th, April 17th and April 29th responses In its March 19, 2024 response, the City asserted “[d]ue to the nature of your request, additional time is needed. As such, the City will need up to, but no more than, fifteen (15) additional business days to review and process your request.” In its April 9, 2024 response, the City provided a document and stated that portions of the document were redacted pursuant to Exemption (c) of the Public Records Law. In its April 17, 2024 response, the City asserted “I have alerted representatives from the Police department regarding this matter in an effort to resolve any outstanding issues regarding your request. I will provide an update to you once additional information is provided to me by the department.” In its April 29, 2024 response, the City reasserted its claim to redact portions of the record pursuant to Exemption (c) of the Public Records Law. Current Appeal In her appeal, Ms. Efendi states, “[t]he [City] … produced one redacted report. I am appealing because I know this was not a full response and, also, because not only should this report not be redacted as much as it is, they provided no reasons for why it was redacted.” 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.

Shawn A. Williams, Esq. SPR24/1115 Page 3 April 30, 2024 Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 its April 9, 2024 response, the City asserted: The responsive records are redacted to omit names of constituents and City employees, personal phone numbers, and estimated age ranges. These portions are exempt from disclosure pursuant to the privacy exemption to the public records law. The public interest in disclosure does not outweigh the privacy interest held by individual constituents. The information is not available from another public source. G. L. c. 4., § 7(26)(c). In its April 29, 2024 response, the City asserted: Exemption (c) permits redaction of information that would constitute an unwarranted invasion of privacy. The redacted portions consist of information that would constitute an unwarranted invasion. As such, the City… stands by its April 9, 2024 response.

Shawn A. Williams, Esq. SPR24/1115 Page 4 April 30, 2024 With the exception of personal phone numbers, it is unclear how all the redactions made in the record constitute intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. Further, the City 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. As a result, I find that the City did not meet its burden in claiming Exemption (c) to redact the responsive records. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Ms. Efendi 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. Ms. Efendi may appeal the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michelle Efendi