Meg Ruley v. Nantucket, Town of (SPR 20250341)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 18, 2025 SPR25/0341 Maureen Coleman Public Records Compliance Officer Town of Nantucket 16 Broad Street Nantucket, MA 02554 Dear Ms. Coleman: I have received the petition of Meg Ruley appealing the response of the Town of Nantucket (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2024, Ms. Ruley requested, “the water quality and PFAS Test results from properties that transferred on Nantucket from January 1 -- to the present as per local well regulation 386-8.” Previous Appeal This request was the subject of a previous appeal. See SPR25/0079 Determination of the Supervisor of Records (January 17, 2025). In my January 17th determination, I learned that the Town intended on providing Ms. Ruley with a response. The Town provided a response on February 3, 2025. Unsatisfied with the Town’s response, Ms. Ruley petitioned this office and this appeal, SPR25/0341, 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 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

Maureen Coleman SPR25/0341 Page 2 February 18, 2025 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. Current Appeal In her appeal petition, Ms. Ruley states: … this is well water, not blood test results from residents. Private information is included in the health department files including well permit applications and Title V reports. The MA DEP has made public the well results from their ongoing private well investigation on Nantucket. The well results I am asking to be placed in the public files are related to property transfers, as per local regulation 386.8, that instructs owners to send the results to the health department. What the health department is doing with these reports is a mystery - but they are not going into the files. I compiled a report of three other Towns in the Commonwealth with identical private well, water quality, property transfer regulations and they all place the reports unredacted into the files. Moreover, I am not aware that people on private wells selling their house are part of MA DEP’s investigation but if they are, those results are very easily accessible on the MA DEP site, or via FOIA unredacted. The Town’s February 3rd Response In its February 3, 2025 response, the Town states, “[a]fter further and careful review of the public health records requested relative to private individuals’ PFAS results, which contain confidential information regarding homeowners – information that is part of an ongoing DEP/Town investigation and public health initiative relative to PFAS contamination – the Town is withholding such information at this time. In providing this further response, the Town’s Health Department has reviewed the request in detail and is providing this additional response to this appeal…” The Town cites Exemption (c) and (f) of the Public Records Law for withholding records responsive to Ms. Ruley’s request. See G. L. c. 4, § 7(26)(c)(f). Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating

Maureen Coleman SPR25/0341 Page 3 February 18, 2025 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). 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. at 438. 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 February 3rd response, the Town states: In this instance, after careful consideration of the PETA factors identified above and after a detailed review of the information at issue, such records, if disclosed, would clearly implicate the privacy interests of individuals and their families. Specifically, the information would enable individuals to receive confidential details regarding specific property owners and their properties regarding details of a highly personal nature, specifically, the detailed analysis and content of their personal drinking water testing results used by specific individuals and their families. Further, the information to the level of specificity requested is not otherwise publicly available. It is the Health Department’s position that the identifiable format requested needs

Maureen Coleman SPR25/0341 Page 4 February 18, 2025 to remain confidential to encourage individuals to participate in such public health investigations and initiatives by testing their water supplies and providing such information to health officials relative to PFAS investigations and related public health considerations, which remain currently under review and investigation by local and state officials, including DEP. Based on the Town’s response, it is unclear how the requested records constitutes intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, it is unclear how releasing the records would result in personal embarrassment to an individual of normal sensibilities or discourage individuals from participating in these types of investigations. Additionally, it is unclear how the records can be withheld in their entirety. The Town must clarify whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Town must clarify these matters. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning

Maureen Coleman SPR25/0341 Page 5 February 18, 2025 matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its February 3rd response, the Town states: … the testing results on record with the Town are in furtherance of active, ongoing public health investigations regarding PFAS contamination, an initiative of local and state public health officials, including DEP. This public health investigation remains active and ongoing at this time. If the information being requested is publicly disclosed and not kept confidential at this time, based on individualized review by the Health Department, individual property owners that are the subject of said testing results may not participate in such ongoing public health investigations, initiatives and efforts, thus directly impeding the Town and DEP’s investigation efforts to the detriment of the public health. Based on the Town’s response, it is unclear how disclosure of the records would cause a chilling effect on the cooperation of participants. Additionally, although the Town states that the records pertain to an active investigation, it is unclear how the records can be withheld in their entirety. Specifically, the Town did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory

Maureen Coleman SPR25/0341 Page 6 February 18, 2025 exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Ms. Ruley with a response to her 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 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: Meg Ruley