Thomas Rocharz v. Middleborough, Town of - Office of the Town Clerk (SPR 20251521)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 11, 2025 SPR25/1521 Allison J. Ferreira Records Access Officer Town of Middleborough 20 Centre Street Middleborough, MA 02346 Dear Ms. Ferreira, I have received the petition of Thomas Rocharz appealing the response of the Town of Middleborough (Town) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On May 6, 2025, Mr. Rocharz requested the following: Copies of all telephone call records for the time period April 21, 2025 through May 5, 2025. This request pertains to all landline and mobile phones assigned to or used by employees of the Health Department (including the Health Inspector’s office) and the Board of Selectmen’s Office, as well as any current members of the Board of Selectmen. This includes, but is not limited to, records for the following individuals: Board of Selectmen [six identified individuals]; Health Department [four identified individuals]. This request specifically includes: Any municipally assigned or utilized mobile devices[,] any departmental or office landlines, including but not limited to the main Select Board and Health Department main lines: …. The Town provided a response on May 20, 2025. Unsatisfied with the Town’s response, Mr. Rocharz petitioned this office and this appeal, SPR25/1521, 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). 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

Allison J. Ferreira SPR25/1521 Page 2 June 11, 2025 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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. See 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 May 20th Response In its May 20, 2025 response, the Town provided Mr. Rocharz with a list of call records under its purview. The Town withheld the last four digits of private phone numbers under Exemption (c) of the Public Records Law. Current Appeal In his appeal, Mr. Rocharz stated, “[t]he Town provided only partial records—limited to two landline extensions (1193 and 2408)—and redacted the last four digits of all phone numbers in those records. No mobile device records were produced, nor was any indication given whether such records exist or were searched. Additionally, the Town has claimed redaction privileges under G.L. c. 4, §7(26); Suffolk Construction Co. v. DCAM, 449 Mass. 444 (2007); and [Public Records Law].” Based on Mr. Rocharz’s petition and the Town’s response, it is unclear whether the Town possesses additional responsive records. Specifically, the Town must clarify whether it possesses records for “[a]ny municipally assigned or utilized mobile devices.” The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G.L. c. 66, § 10(a)(ii). 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

Allison J. Ferreira SPR25/1521 Page 3 June 11, 2025 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. Under Exemption (c), the Town states, “…after a diligent search, the Town Manager’s Office has located documents responsive to your request and they are enclosed herewith. Please note, private phone numbers have been redacted pursuant to G.L. c. 4, § 7(26)(c).” Based on the Town’s response, it is unclear how all the requested telephone numbers are exempt from disclosure under Exemption (c). The Town has not demonstrated that all of the withheld telephone numbers are of a personal nature, rather than related to the Town Health Department’s or the Town Board of Selectmen’s business. Consequently, it is not clear that the requested information constitutes intimate details of a highly personal nature, nor that disclosing the requested information constitutes an unwarranted invasion of personal privacy. It is also not clear whether the requested information is available from other sources. Additionally, the Town must provide additional 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. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Rocharz with a response to his request 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. Rocharz may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Allison J. Ferreira SPR25/1521 Page 4 June 11, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Thomas Rocharz