Olufunmilola Shelly v. Framingham, City of (SPR 20241912)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2024 SPR24/1912 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Olufunmilola Shelly appealing the response of the City of Framingham (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 23, 2024, Ms. Shelly requested, “the voice recordings for the voice mail messages that are attached to the three emails that are responsive to request 2024-1411[.]” Previous Appeal This request was the subject of a previous appeal. See SPR24/1705 Determination of the Supervisor of Records (June 20, 2024). In my June 20th Determination, I ordered the City to provide Ms. Shelly with a response to her request. The City responded on July 3, 2024, providing a responsive record with redactions under Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Unsatisfied with the City’s response, Ms. Shelly appealed, and this case, SPR24/1912, 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Paul J. Iversen SPR24/1912 Page 2 July 17, 2024 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 City’s July 3rd Response In its July 3, 2024 response, the City provides a responsive record and cites Exemption (c) of the Public Records Law for redacting the record. See G. L. c. 4, § 7(26)(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 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). 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 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 July 3rd response, the City states, “[t]his is a transcript of the withheld emails, which has been redacted under exemption (c) for the personal contact information of a private citizen.”

Paul J. Iversen SPR24/1912 Page 3 July 17, 2024 Although the City states that it redacted “the personal contact information of a private citizen[,]” it is unclear what information has been redacted from the record, nor, how the redacted information constitutes intimate details of a highly personal nature. It is also not certain how disclosure of the information would result in personal embarrassment to an individual of normal sensibilities. Further, the City 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. Therefore, the City must clarify these matters. Preferred Format In her appeal petition, Ms. Shelly contends that “[w]hile the city has provided a transcript of the calls in question, [she] seek[s] the original voicemails.” In this case, where Ms. Shelly requested “. . . the voice recordings for the voice mail messages. . .[,]” it is unclear why the City has provided a transcript of the records. The City must explain whether it is feasible to provide the responsive records in Ms. Shelly’s preferred format. Conclusion Accordingly, the City is ordered to provide Ms. Shelly with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Olufunmilola Shelly