Les Brail v. Newton, City of (SPR 20250457)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 10, 2025 SPR25/0457 Jonah M. Temple, Esq. Deputy City Solicitor City of Newton – Law Department 1000 Commonwealth Avenue Newton, MA 02459 Dear Attorney Temple: I have received the petition of Les Brail appealing the response of the City of Newton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 3, 2024, Mr. Brail requested the following: [1] All correspondence, minutes, notes and documents regarding the selection of art exhibits at the Newton Public Library dating back to January 1, 2023[;] [2] The list of jurists that select the art exhibits (“the jurists”) for the Newton Public Library dating back to Jan 1, 2023[;] [3] Any correspondence, minutes, notes and documents of the jurists dating back to January 1, 2023[; and] [4] Any correspondence between the jurists and representatives/staff of the City of Newton dating back to January 1, 2023. Prior Appeals This request was the subject of prior appeals. See SPR24/1893 Determination of the Supervisor of Records (July 3, 2024); SPR24/2492 Determination of the Supervisor of Records (September 16, 2024); and SPR24/3260 Determination of the Supervisor of Records (December 18, 2024). In my December 18th determination, I found that the City did not meet its burden to withhold the names of the Art Committee members under Exemption (c) of the Public Records Law. The City responded on January 3, 2025. Unsatisfied with the response, Mr. Brail petitioned this office and this appeal, SPR25/0457, was opened as a result. 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

Jonah M. Temple, Esq. SPR25/0457 Page 2 March 10, 2024 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. 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. Current appeal In his appeal Mr. Brail states, “[t]he city has not complied with the Secretary of State’s determination and the names of the art committee were not released.” The City’s January 3rd response In its January 3, 2025 response, the City cited Exemptions (c) and (n) of the Public Records Law to withhold the names of the Newton Free Library’s Art Committee. Exemption (c) Exemption (c) permits the withholding of: 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

Jonah M. Temple, Esq. SPR25/0457 Page 3 March 10, 2024 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). 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. In its response, the City stated, As set forth in detail in the City’s second supplemental response (Exhibit B), the Committee members—with the exception of one—are private citizens that volunteered to review art submissions and make recommendations to the Library’s Director and Manager of Programs. This position is buttressed by a recent decision issued by the Office of the Attorney General on December 19, 2024, finding that the Committee does not constitute a public body subject to the Open Meeting Law. See Exhibit C. Therefore, the individuals who comprised the Committee were private volunteers, not public employees. They did not carry out any official duties and had no final decision-making authority. Because they were not acting in any capacity as a public official, they have a greater expectation of privacy. Specifically, such individuals have a strong privacy interest in their identities and contact information that is not substantially outweighed by the public interest in disclosing that information. See Federal Labor Relations Auth. v. United States Dep’t of Navy, Naval Communications Unit Cutler, E. Machias, Me., 941 F.2d 49, 55–56 (1st Cir. 1991) (privacy interest in one’s name and home address is “discernible” and “real enough to be worthy of recognition and protection in appropriate circumstances”).

Jonah M. Temple, Esq. SPR25/0457 Page 4 March 10, 2024 While the Supervisor’s order states that Exemption (c) is limited only to intimate details of a highly personal nature or information that would cause personal embarrassment, the statutory language for Exemption (c) is much broader and allows for the withholding of any record where disclosure “may constitute an unwarranted invasion of personal privacy.” See G.L. c. 4, § 7(26). There is no legal basis to limit this exemption to only intimate details or personal embarrassment. The Supreme Judicial Court made that clear in PETA and subsequent cases, where it acknowledges that other factors may be relevant to the privacy calculus, including concerns of an individual’s personal safety. The City further asserted, “... there is reasonable concern that, once the names of the committee members become available to the general public, those private individuals would be subject to retaliation, harassment, and invasion of their personal privacy. There are also concerns about their personal safety if their names are disclosed amidst the current climate of anger and outrage over the Israel-Hamas war. Given these circumstances, the City has determined the privacy interests of the volunteer committee members outweigh any public interest in the disclosure of their names.” The City further asserted, “... the names of these private citizens and their contact information is not available from any other source and has never been publicly available or posted in any manner. The Committee is not a public body and the only way their names could ever be disclosed would be through production of the document at issue being withheld. It should also be noted that the Library has suspended its art program and does not intend to ever reconvene the Committee, meaning the committee no longer exists, lessening even further any public interest in disclosure.” Despite the City’s January 3rd response, I find the City has not met its burden to withhold the names of the Art Committee members under Exemption (c) of the Public Records Law. Specifically, the City has not demonstrated that the names of the Art Committee members constitute intimate details of a highly personal nature. PETA, 477 Mass. at 292. Additionally, the City has not established how any privacy interest is not substantially outweighed by the public interest in obtaining this information. See SPR24/3260. 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.

Jonah M. Temple, Esq. SPR25/0457 Page 5 March 10, 2024 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, the City states, In addition to the City’s determination that release of the committee members’ personal information will lead to an invasion of privacy, the same concerns regarding safety and harassment support exempting this information under Exemption (n). In the City’s reasonable judgment, based on all of the information referenced above and in the City’s prior responses, release of personal information concerning these private individuals will likely jeopardize public safety. Therefore, for all the reasons set forth here and in the City’s prior responses in connection with this appeal, the City has determined that the personal information of these individuals, including their names, phone numbers, and email addresses, are protected under both Exemption (c) and Exemption (n) of the Public Records Law, G.L. c. 4 sec. 7(26). Based on the City’s response, it is unclear how the requested records resemble the records listed as examples in the statute as contemplated in PETA. See PETA, 477 Mass. at 289. Particularly, it is unclear 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

Jonah M. Temple, Esq. SPR25/0457 Page 6 March 10, 2024 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 City did not provide factual heft to support the withholding of the requested information pursuant to Exemption (n). Specifically, the City has not sufficiently explained how disclosure of the information is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The City must clarify these matters. As a result, I find that the City has not met its burden in withholding the names of the Art Committee members under Exemptions (c) and (n) of the Public Records Law. Conclusion Accordingly, the City is ordered to provide Mr. Brail 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. Mr. Brail may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Les Brail