Jonathan Gerhardson v. Shrewsbury Electric & Cable Operations (SPR 20241559)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2024 SPR24/1559 Valerie B. Clemmey Communications Coordinator Shrewsbury Electric & Cable Operations 100 Maple Avenue Shrewsbury, MA 01545 Dear Ms. Clemmey: I have received the petition of Jonathan Gerhardson appealing the response of the Shrewsbury Electric & Cable Operations (SELCO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 9, 2024, Mr. Gerhardson requested the following: [1.] Warrants, subpoenas, or other requests for logs of internet traffic, its metadata, or other information generated through the use of SELCO as an internet service provider from any person, agency, or other source made between May 1, 2024 and May 1, 2024… [2.] All communications between SELCO, or other Shrewsbury officials, and the requestors of this information SELCO responded on May 22, 2024. Unsatisfied with the SELCO’s response, Mr. Gerhardson petitioned this office and this appeal, SPR24/1559, 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. 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

Valerie B. Clemmey SPR24/1559 Page 2 June 6, 2024 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. SELCO’s May 22nd Response In its May 22, 2024 response, SELCO cited Exemption (c) of the Public Records Law and 18 U.S.C. § 2705 to withhold responsive records. Current appeal In his appeal, Mr. Gerhardson states, “I do not believe the records I am seeking fall under the ‘privacy’ exemption. As specifically described in my request I am seeking no actual logs myself. Any communications about those logs are presumed to be public records.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Valerie B. Clemmey SPR24/1559 Page 3 June 6, 2024 In its May 22nd response, the Department cites 18 U.S.C. § 2705, which states in part: (a)Delay of Notification.— (1)A governmental entity acting under section 2703(b) of this title may— (A) where a court order is sought, include in the application a request, which the court shall grant, for an order delaying the notification required under section 2703(b) of this title for a period not to exceed ninety days, if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result described in paragraph (2) of this subsection; or (B) where an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena is obtained, delay the notification required under section 2703(b) of this title for a period not to exceed ninety days upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result described in paragraph (2) of this subsection. (2)An adverse result for the purposes of paragraph (1) of this subsection is— (A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial. (3) The governmental entity shall maintain a true copy of certification under paragraph (1)(B). … 18 U.S.C. § 2705. Under this statute, SELCO stated, “[t]hese records are confidential under the authority of 18 U.S.C. § 2705, to not disclose the existence of this demand.” Additionally, in a memo sent to this office on May 31, 2024, SELCO stated, “[u]pon review, [SELCO] determined that the records pertinent to this revised request referenced 18 U.S.C. § 2705, indicating that they were confidential and should not disclose the existence of the demand, as doing so could potentially impede an active criminal investigation.”

Valerie B. Clemmey SPR24/1559 Page 4 June 6, 2024 Based on the Department’s response, it is unclear how the above cited statute permits it to withhold the request records from disclosure. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). Please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. The Department must clarify how the responsive records are exempt from disclosure under 18 U.S.C. § 2705. 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). 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). 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). 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 any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477

Valerie B. Clemmey SPR24/1559 Page 5 June 6, 2024 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), SELCO argues that “[t]hese records are exempt from disclosure under the ‘privacy’ exemption to the Public Records Law, with respect to ‘materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy’[.]” Additionally, in a memo sent to this office on May 31, 2024, SELCO stated, “the records related specifically to a named individual, which I believed warranted exemption under [Exemption (c)].” SELCO is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. 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; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Based on the SELCO’s response, SELCO has not explained how the withheld information constitutes intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, SELCO did not provide 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. PETA, 477 Mass. at 292. SELCO must clarify these matters. In addition, SELCO did not identify the records, categories of records or portions of records in its possession that it withheld from disclosure. SELCO must clarify this. Conclusion Accordingly, SELCO is ordered to provide Mr. Gerhardson 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.

Valerie B. Clemmey SPR24/1559 Page 6 June 6, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jonathon Gerhardson Christopher Roy