Kevin Berner v. Braintree, Town of - Town Clerk (SPR 20241969)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2024 SPR24/1969 Crystal Huff, Esq. Town Solicitor Town of Braintree One JFK Memorial Drive Braintree, MA 02184 Dear Attorney Huff: I have received the petition of Kevin Berner appealing the response of the Town of Braintree (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 3, 2024, Mr. Berner requested, “... interview transcripts that accompany Comprehensive Investigations and Consulting’s (CIC) independent review of the criminal investigation that the Braintree Police Department conducted relative to a July, 2023 incident involving minors (Incident report 22-015380). We expect that these interview transcripts were received by the Town of Braintree between November 27, 2023 and December 6, 2023.” Prior Appeals and In Camera review The requested records were the subject of prior appeals and an in camera review. See SPR24/0498 Determination of the Supervisor of Records (February 28, 2024) and SPR24/1124 Determinations of the Supervisor of Records (April 30, 2024 and June 10, 2024). In my June 10th determination, I found that to the extent that the transcripts contain information identifying victims and voluntary witnesses, the Town may permissibly withhold such portions from disclosure under Exemption (f). I further found that the Town did not meet its burden to justify all the redactions made to the transcripts pursuant to Exemption (c). The Town provided a response on July 8, 2024. Unsatisfied with the response, Mr. Berner petitioned this office and this appeal, SPR24/1969, 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 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

Crystal Huff, Esq. SPR24/1969 Page 2 July 24, 2024 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 custodian must provide the responsive records. The Town’s July 8th Response In its July 8, 2024 response, the Town advised that portions of the transcripts were redacted pursuant to Exemption (c) of the Public Records Law. 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 any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477

Crystal Huff, Esq. SPR24/1969 Page 3 July 24, 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. In its response, the Town asserts the following: ... the Town expressly incorporates by reference its prior responses and asserted exemptions. ... the Town has again undertaken a diligent individualized review of the transcripts and has narrowly tailored its redactions further to the applicable exemptions, so that no more information than is necessary has been redacted from the enclosed transcripts. The Town has carefully and individually reviewed the records to ensure that exempt information has been appropriately redacted while non-exempt portions are disclosed, as set forth herein. Specifically, the Town has made minor necessary redactions to remove identifying information of minors and identifying details of a highly personal nature regarding specifically identified individual(s). Such redactions are necessary in this instance given the substance of the records and the contents contained therein. Exemption (c) to the Public Records Law covers “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….” G.L. c. 4, § 7(26)(c). The Town has again undertaken a further thorough analysis of the three factors articulated by the Court in People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agricultural Resources, 477 Mass. 280, 292 (2017) ... In this regard, the Town reiterates its position that the portions of the transcripts that contain highly intimate details and are akin to the categories of information the Courts have already determined are not subject to public disclosure must be redacted. The disclosure of such information satisfies the first and second prongs of the PETA test given the specific highly personalized details of the transcripts, particularly as it concerns minor children and their identifying information. Id. (Exemption (c) protects from public disclosure a variety of personal information, including: marital status, paternity, substance abuse, government assistance, family disputes, and reputation). Additionally, this investigative information is not available from any other sources, as the transcripts exist solely in the custody of the Town and the investigator who issued the CIC report, as part of CIC’s investigation file. Cf. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 157 (1979) (“the seriousness of any invasion of privacy resulting from disclosure of the records ... is reduced since substantially the same information is available from other sources”). In light of such legal considerations, the Town has diligently reviewed its prior redactions in good faith to ensure that the enclosed redactions are specifically and

Crystal Huff, Esq. SPR24/1969 Page 4 July 24, 2024 narrowly tailored to balance such privacy considerations. Therefore, it has considered the application of Exemptions (a) and (c) to the enclosed responsive records, and in carefully balancing these private and public interests, has unredacted further portions of the enclosed records, as requested, to ensure that all such redactions are narrowly tailored to redact only exempt portions of the requested transcripts. After this further detailed review by the Town in good faith and in an effort to resolve this appeal, while simultaneously balancing the significant privacy interests involved, the enclosed transcripts with fewer redactions are thus being provided to you in your capacity as a parent and complainant in the underlying matter. Upon review of the records in camera, coupled with the review of the amended transcripts, I find that the Town has met its burden to withhold the redacted information pursuant to Exemption (c) of the Public Records Law. In the June 10th determination, I found that to the extent that the transcripts contain information identifying victims and voluntary witnesses, the Town may permissibly withhold such portions from disclosure under Exemption (f). See SPR24/1124. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Berner is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.L. c. 66 §10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Kevin Berner