Colman Herman v. Suffolk County Sheriff's Department (SPR 20242143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 9, 2024 SPR24/2143 Berky Gray Paralegal Suffolk County Sheriff’s Department 200 Nashua Street Boston, MA 02114 Dear Ms. Gray: I have received the petition of Colman Herman appealing the response of the Suffolk County Sheriff’s Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 24, 2024, Mr. Herman requested the following: [1.] Records of all expenses that [a named individual] has incurred in his capacity as Sheriff of Suffolk County for the period of July 1, 2023, to the present… [2.] The written employee reimbursement policy of the Suffolk County sheriff’s department. The Department provided a response on July 23, 2024. Unsatisfied with the response, Mr. Herman petitioned the Supervisor of Records and this appeal, SPR24/2143, was opened. 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

Berky Gray SPR24/2143 Page 2 August 9, 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. The Department’s July 23rd response In its July 23, 2024 response, the Department provided records and cited Exemption (c) of the Public Records Law to redact information. Current Appeal In his appeal, Mr. Herman states, “[the Department]’s claim of exemption (c) lacks the specificity required by the Massachusetts public records law for properly claiming exemptions.” 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.

Berky Gray SPR24/2143 Page 3 August 9, 2024 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. Under Exemption (c), the Department stated, “[p]lease note that per [Exemption (c)] which bars disclosure of the personal and/or medical information and data that may constitute an unwarranted invasion of privacy, the responsive documents have been redacted accordingly.” Subsequent to the opening of this appeal, on July 30, 2024, the Department stated, “the only information that was even redacted from the Department’s responses were actual credit card numbers. The credit card numbers were redacted because they fall within the category of information which implicates a privacy interest. Credit card numbers are obviously confidential and the actual number in no way sheds light on whether the Sheriff ‘is carrying out his actual duties in a law abiding and efficient manner.’ In summary the Department’s response to [Mr. Herman] did not warrant more specificity for properly claiming exemptions because the redaction of credit card numbers is self-explanatory.” In response to the Department’s July 30th response, Mr. Herman states, “[w]hat was redacted on page 11? It does not appear to be credit card information.” To the extent the records contain credit card numbers, the Department may permissibly withhold such portions from disclosure under Exemption (c). However, based on Mr. Herman’s July 30th response, the Department must clarify if additional information, aside from the credit card numbers, was redacted from the records and how that information constitutes intimate details of a highly personal nature under Exemption (c). G. L. c. 66, § 10(b)(iv) (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…”); 950 C.M.R. 32.06(3); see also Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). The Department must clarify this matter.

Berky Gray SPR24/2143 Page 4 August 9, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Herman 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 the 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. Mr. Herman may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman Melissa Garand, Esq.