Karen Crum v. Hopkinton, Town of (SPR 20242864)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2024 SPR24/2864 Connor B. Degan Town Clerk Town of Hopkinton 18 Main Street Hopkinton, MA 01748 Dear Mr. Degan: I have received the petition of Karen Crum appealing the response of the Town of Hopkinton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 12, 2024, Ms. Crum requested the following: [1] [A]ll access card “swipes” of [an identified individual] from January 1, 2020 through July 12, 2024. [2] [A]ll frames (video captures) showing [an identified individual] entering and/or exiting the Hopkinton Police Department during the following time periods in the year 2023: January 9 through January 13; February 6 through February 10; May 8 through May 12; June 5 through June 9; September 4 through September 8; and, October 9 - October 13. The Town responded on July 26, 2024, and again on October 17, 2024. Unsatisfied with the Town’s response, Ms. Crum petitioned this office, and this appeal, SPR24/2864, 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 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

Connor B. Degan SPR24/2864 Page 2 October 31, 2024 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. 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 26th Response In its July 26, 2024 response, the Town cites Exemptions (b), (c), and (n) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(b), (c), (n). In its October 17, 2024 response, the Town referred Ms. Crum back to its July 26th response. Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires

Connor B. Degan SPR24/2864 Page 3 October 31, 2024 a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In its July 26th response, under Exemption (b), the Town argues the following: Here, the data you seek could reveal the Department’s internal practices with respect to police officer whereabouts. Revealing that information would create a safety risk for Hopkinton police officers and the public because such information could be used to target the Chief (or any other officer about whom such data is requested) or to establish police staffing and whereabouts at particular times, to the detriment of the Department’s responsibility to protect the people and property of Hopkinton. Such information is therefore exempt from disclosure under Exemption B. In this case, the Town has not demonstrated that the responsive records are solely related to internal personnel rules and practices of the government unit. Additionally, the Town has not explained whether such records are predominantly used internally, and it is unclear how such records would significantly risk circumvention of the Town’s regulations. Therefore, the Town has not met its burden to withhold the responsive records under Exemption (b). 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).

Connor B. Degan SPR24/2864 Page 4 October 31, 2024 Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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 response, under Exemption (c), the Town argues the following: Here, the targeted disclosure of the Police Chief’s whereabouts (or similar information about any other police officer) would implicate privacy concerns including but not limited to potential leave and other matters (e.g., family or medical issues) that could be of a highly personal nature. Such information, being of a highly personal nature, would not implicate a strong interest in public disclosure, meaning that privacy interests would outweigh the public’s right to know that information. And that information is not available from other sources. Exemption C, accordingly, exempts this information from disclosure. Based on the Town’s response, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records would constitute medical information or contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the Town 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. The Town must clarify these matters.

Connor B. Degan SPR24/2864 Page 5 October 31, 2024 Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In its response, under Exemption (n), the Town argues the following: Here, as previously explained, the information you seek would reveal officer whereabouts. It would also reveal Police building security practices. In both instances, the disclosure of that information would be useful to a terrorist to maximize damage to the community and jeopardize public safety. Accordingly, Exemption N applies to shield that information from disclosure.

Connor B. Degan SPR24/2864 Page 6 October 31, 2024 Based on the Town’s response, it is unclear how the requested records resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how the records resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the records are the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). Further, the Town did not provide factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the Town has not sufficiently explained how disclosure of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Ms. Crum 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. Sincerely, Manza Arthur Supervisor of Records cc: Karen Crum