Jonathan Gerhardson v. West Springfield, Town of - Office of the Town Clerk (SPR 20252838)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 9, 2025 SPR25/2838 Kate R. O’Brien Scott, Esq. General Counsel Town of West Springfield 26 Central Street West Springfield, MA 01089 Dear Attorney O’Brien Scott: I have received the petition of Jon Gerhardson appealing the response of the Town of West Springfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 24, 2025, Mr. Gerhardson requested the following records in an “unmodified . . . computer readable format such as csv or xlsx[:]” [1] Organization Audit in Flock[:] The report should include data logged from the period of July 19 until the date this request is processed. . .[;] [2] Network Audit in Flock[:] The report should include data logged from the period of July 19, to the date this request is processed. . . . The Town responded on September 12, 2025. Unsatisfied with the response, Mr. Gerhardson petitioned this office and this appeal, SPR25/2838, 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. Attorney 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

Kate R. O’Brien Scott, Esq. SPR25/2838 Page 2 October 9, 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. The Town’s September 12th Response In its September 12, 2025 response, the Town provided numerous pages of responsive records in .csv format to both Items of Mr. Gerhardson’s request and further indicated that it was withholding other records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. Upon review of the case file, it is my understanding that the Town’s argument for withholding records responsive to Item 1 of Mr. Gerhardson’s request is duplicative of the argument it provided for withholding records responsive to Item 2. Specifically, the Town stated the following: Please see responsive records attached hereto. The system retains this data for only thirty (30) days; accordingly, you have been provided with the audit report covering the period beginning August 12, 2025 through the present. Certain information has been withheld, specifically data related to individual license plate numbers, the reasons for the searches, and the associated case numbers. The information is being withheld pursuant to the Investigatory Exemption (G.L. c. 4, §7(26)(f)), as the requested data is compiled as part of the Police Department’s law enforcement investigatory activities. Disclosure would reveal information related to criminal investigations, investigatory techniques, and the Department’s deployment of law enforcement resources. The Public Records Law expressly exempts “investigatory materials necessarily compiled out of the public view” if disclosure would prejudice effective law enforcement. Release of this data would compromise the confidentiality of ongoing investigations and risk undermining public safety. In addition, the data related to specific license plate numbers is being withheld pursuant to the Privacy Exemption (G.L. c. 4, §7(26)(c)), as the license plate numbers could be linked to identifiable individuals. Disclosure of such personally identifying data would constitute an unwarranted invasion of personal privacy. In addition, the information is being withheld pursuant to the statutory exemption (G.L. c. 4, §7(26)(c)), based on the Driver’s Privacy Protection Act (18 U.S.C. §2721 et seq.). To the extent that responsive records contain or could be used to obtain personal information maintained by the Registry of Motor Vehicles, federal law prohibits disclosure of such information except under limited circumstances not applicable here.

Kate R. O’Brien Scott, Esq. SPR25/2838 Page 3 October 9, 2025 Current Appeal In his September 26, 2025 appeal petition, Mr. Gerhardson refutes the Town’s basis for withholding the responsive information, and states the following: The [Town] . . . claims exemption (a) applies to the license plate numbers contained in these logs because the federal Driver’s Privacy Protection Act (DPPA) preempts the state’s records law. . . . [T]his law does not apply to license plate numbers, which by necessity are not private. . . . As for exemption (f), if West Springfield can provide evidence it has thoroughly vetted every single organization it shares data with it should do so, and it should have the burden of proving that the thousands of organizations employing what must be in the hundreds of thousands of people. . . . Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), the Town cited the Driver Privacy Protection Act (Act). The Act provides in pertinent part: (a) In general.--A State department of motor vehicles, and any officer, employee,

Kate R. O’Brien Scott, Esq. SPR25/2838 Page 4 October 9, 2025 or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity: (1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; or (2) highly restricted personal information, as defined in 18 U.S.C. 2725(4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, except uses permitted in subsections (b)(1), (b)(4), (b)(6), and (b)(9): Provided, That subsection (a)(2) shall not in any way affect the use of organ donation information on an individual's driver's license or affect the administration of organ donation initiatives in the States. 18 U.S.C. § 2721(a). “Personal information,” as used in the above statute, is defined as follows: “personal information” means information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status. 18 U.S.C. § 2725(3). The Superior Court addressed the application of the Drivers Privacy Protection Act (DPPA) to municipalities in the recent case of Somerville v. Murray. See Memorandum of Decision and Order Re: Plaintiff’s Motion for Judgement on the Pleadings and Defendant’s Cross-Motion for Judgement on the Pleadings Middlesex, City of Somerville v. Rebecca Murray, as Supervisor of Records, Sup. No. 15 81 CV 04911, at 2-3 (December 4, 2019). In Somerville, the Superior Court found that the DPPA “is specific as to what entities it applies to and as to what information is protected.” Id. at 3. In that case, a requestor sought “a list of residential parking permits, including . . . the permit number, issue date, expiration date, vehicle model/make/year, license plate number, first name, last name, address and zip code.” Id. at 2. The court found “that given the specific language in the DPPA, that statute specifically does not apply to municipalities and that it does not specifically or by necessary implication exempt from disclosure the data being sought.” Id. at 3. The issues presented in this appeal appear analogous to those addressed in Somerville. Here, in place of parking permits, Mr. Gerhardson seeks data related to individual license plate numbers through his request for Items 1 and 2. Accordingly, the withheld information as it concerns individual license plate numbers is not exempt pursuant to Exemption (a) and the DPPA. Therefore, I find the Town has not met its burden to withhold data related to individual license plate numbers pursuant to Exemption (a).

Kate R. O’Brien Scott, Esq. SPR25/2838 Page 5 October 9, 2025 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 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 Based on the Town’s response, it is unclear how “data related to specific license plate numbers” constitutes intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Further, the Town did not 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. Consequently, I find the Town did not meet its burden of demonstrating how “data related to individual license plate numbers” is exempt from disclosure under Exemption (c) of the Public Records Law. 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

Kate R. O’Brien Scott, Esq. SPR25/2838 Page 6 October 9, 2025 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 v. Police Comm’r of Boston, 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 289-290. Although the Town claims in its response that information regarding “data related to individual license plate numbers, the reasons for the searches, and the associated case numbers” is “compiled as part of the Police Department’s law enforcement investigatory activities[,]” it is unclear how this information constitutes investigatory materials under Exemption (f). It is additionally uncertain whether the redacted portions of the records pertain to an ongoing investigation. Further, the Town did not demonstrate how disclosure of this information “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). As a result, I find the Town did not meet its burden of demonstrating how “data related to individual license plate numbers, the reasons for the searches, and the associated case numbers” are exempt from disclosure under Exemption (f). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Gerhardson with a response to his 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. Mr. Gerhardson may appeal the substantive nature of the Town’s response within 90 days. See 950 C.M.R. 32.08(1).

Kate R. O’Brien Scott, Esq. SPR25/2838 Page 7 October 9, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Jon Gerhardson