Mike Dunphy v. Worcester, City of - Office of the District Attorney (SPR 20243347)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2024 SPR24/3347 Lindsay Corcoran Director of Communications Worcester District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Ms. Corcoran: I have received the petition of Mike Dunphy, appealing the response of the Worcester District Attorney’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 November 5, 2024, Mr. Dunphy requested “police records regarding the homicide of [a named individual] that occurred in Uxbridge, MA on January 15, 2007.” The Office provided a response on December 11, 2024, providing some records and withholding additional records. Unsatisfied with the Office’s response, Mr. Dunphy petitioned this office and this appeal, SPR24/3347, 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. 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

Lindsay Corcoran SPR24/3347 Page 2 December 23, 2024 The Office’s December 11th Response In its December 11, 2024 response, the Office provided records and cited Exemption (c) of the Public Records Law to redact information and withhold additional requested records. Current Appeal In his appeal, Mr. Dunphy states, “the disclosure of the requested case files should be allowed under MA state Freedom of Information Act for the following reasons: [1.] The records are not the subject of active litigation, administrative hearings, or Mediation. [2.] The request is not intended to harass or intimidate someone or assist in the commission of a crime.” 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. 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).

Lindsay Corcoran SPR24/3347 Page 3 December 23, 2024 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. Under Exemption (c), the Office stated, “. . . [p]lease note, [the Office] has an obligation to protect the privacy of persons named in the documents. Therefore, the public file does not include telephone numbers and other personal identifying information… Additional recordings, including video of the homicide, have been withheld as they contain material related to specifically named individuals that would constitute an unwarranted invasion of personal privacy if disclosed.” To the extent the records contain personal telephone numbers, the Office may permissibly withhold such portions from disclosure under Exemption (c). However, based on the Office’s response, the Office must clarify what additional information, aside from the telephone 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). Additionally, the Office has not explained how the withheld records, in their entirety, constitute intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the Office 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 Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Dunphy 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. 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. Mr. Dunphy may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Lindsay Corcoran SPR24/3347 Page 4 December 23, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Mike Dunphy Mark Relation, Esq.