Paul Budge v. Natick, Town of - Police Department (SPR 20241702)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 20, 2024 SPR24/1702 Lieutenant Leo Fitzpatrick Records Access Officer Natick Police Department 20 East Central Street Natick, MA 01760 Dear Lieutenant Fitzpatrick: I have received the petition of Paul Budge, Esq., of Altman, Nussbaum, Shunnarah, appealing the response of the Natick 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 May 22, 2024, Attorney Budge requested, “…a copy of report # 24-233-OF.” On May 24, 2024, the Department provided a response, including a responsive record in redacted form. Unsatisfied with the Department’s response, Attorney Budge petitioned this office and this appeal, SPR24/1702, 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 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

Lieutenant Leo Fitzpatrick SPR24/1702 Page 2 June 20, 2024 custodian must provide the responsive records. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Budge’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. The Department’s May 24th response In its May 24, 2024 response, the Department provided a responsive record and cited Exemption (c) of the Public Records Law to redact the record. Current Appeal In his appeal, Attorney Budge stated: This exemption is not applicable to the redaction made on the report for the reasons below: [1] No information in the report, nor the redacted names in the report, relate to personnel and/or medical files. This is dispute that occurred in a public place. [2] The disclosure of names on the report would not constitute “an unwarranted invasion of personal privacy.” [My client] has retained counsel for the purposes of investigating a civil claim against the individual(s) and entities involved in the incident that is the subject of the report. [My client] has every right to investigate this claim through counsel. Therefore, the disclosure of this information constitutes a warranted disclosure of “personal privacy.” [3] The action(s) and identities of the individuals involved in this incident does not constitute “personal privacy” and therefore, the report memorializing the action(s) and identities of the individual involved in this incident does not constitute “personal privacy.” This was an incident that occurred on a premises that is open to the public and the public was able to observe this incident. For this reason, neither the incident, nor the report memorizing the incident constitutes “personal privacy.” For these reasons, … [we] are entitled to an unredacted copy of the report.

Lieutenant Leo Fitzpatrick SPR24/1702 Page 3 June 20, 2024 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. 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 May 24, 2024 response, the Department asserted, “[p]lease note that due to Public Record Law, Exemption C Privacy it is a redacted copy.” Based on the Department’s response, it is unclear how the redacted information constitutes 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 Department 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.

Lieutenant Leo Fitzpatrick SPR24/1702 Page 4 June 20, 2024 As a result, I find that the Department did not meet its burden of specificity in claiming Exemption (c) to redact the responsive report. Conclusion Accordingly, the Department is ordered to provide Attorney Budge 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. Attorney Budge may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Paul Budge, Esq.