Michael Pabian v. Hampshire County Sheriff's Department (SPR 20242630)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 3, 2024 SPR24/2630 Thomas Mitchell Records Access Officer Hampshire County Sheriff’s Office 205 Rocky Hill Road Northampton, MA 01061 Dear Mr. Mitchell: I have received the petition of Michael Pabian, Esq. appealing the response of the Hampshire County Sheriff’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 8, 2024, Attorney Pabian requested, “a copy of the following records: inmate visitor log at Hampshire County House of Correction for [a named individual] … from on or about May 30, 1999 until December 31, 2001.” The Office provided responses on August 9, 2024 and August 19, 2024. Unsatisfied with the Office’s responses, Attorney Pabian petitioned this office and this appeal, SPR24/2630, 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 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 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

Michael Pabian, Esq. SPR24/2630 Page 2 October 3, 2024 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. Current Appeal In his appeal petition, Attorney Pabian contends that “[t]he requested visitor logs clearly fall within the general statutory definition of ‘public records’ because they ‘were ‘made or received’ by a public official, the sheriff.’” He further contends that “[t]he Office of the Sheriff was also wrong to minimize the relevance of the notarized request signed by [a named individual] authorizing the release of his own visitor logs.” Status of the Requestor In his appeal petition, Attorney Pabian provides a notarized signature from the inmate authorizing disclosure of his visitor logs. 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). The Office’s August 9th and August 19th Responses In its August 9th and August 19th responses, the Office cites Exemption (c) of the Public Records Law for withholding records responsive to Attorney Pabian’s request. 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:

Michael Pabian, Esq. SPR24/2630 Page 3 October 3, 2024 (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 the Office’s August 9th response, it states, “inmate visitor logs are not public records within the meaning of M.G.L.c. 4, § 7, and are specifically exempted from disclosure by 26(c) as ‘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….’ By definition, Inmate Visitor Logs contain data related to a specifically named individual, the visitor, who has a reasonable expectation of privacy in that visit. The disclosure of the records sought would link a purely private individual to a visit and by inference a relationship with a specifically identified inmate and would necessarily constitute just such ‘an unwarranted invasion of personal privacy.’” In the Office’s August 19, 2024 response, it again declines to provide responsive records on the same basis. Based on the Office’s response, I find the Office has not met its burden to demonstrate how disclosing the responsive records would result in personal embarrassment to an individual of normal sensibilities. Further, in light of the procedures governing visitation to jails, e.g., those articulated in G. L. c. 127, § 36 (requiring each visitor provide statement with name, residence, and relationship to inmate), and 103 C.M.R. 483 (records shall be kept for every inmate with name and date for every visit), the Office has not demonstrated how the visitor names are intimate details of a highly personal nature. Additionally, the Office has not addressed whether this information is available from other sources. See PETA, 477 Mass. at 291-92. Further, the Office has not established that the seriousness of any invasion of privacy is not outweighed by the public interest in obtaining the requested information. See PETA, 477 Mass. at 291. It is unclear how the public does not have an interest in knowing this information. In light of the PETA analysis, I find the Office has not met its burden to establish that Exemption (c) applies to withhold the responsive records. Conclusion Accordingly, the Office is ordered to provide Attorney Pabian with a response to his 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

Michael Pabian, Esq. SPR24/2630 Page 4 October 3, 2024 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: Michael Pabian, Esq.