Jeffrey P. Allen v. Brookline, Town of - Town Clerk (SPR 20253172)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 5, 2025 SPR25/3172 Ben Kaufman Town Clerk Town of Brookline 333 Washington Street, Room 104 Brookline, MA 02445 Dear Mr. Kaufman: I have received the petition of Jeffrey P. Allen, Esq., of Lawson & Weitzen, LLP, on behalf of Robert and Cathleen Schoen, appealing the response of the Town of Brookline (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 8, 2025, Attorney Allen requested: [1] All documents, plans, records and correspondence regarding requests for reasonable accommodation for …Hawes Street, Brookline, Massachusetts. The applicable date range is January 1, 2025 to present, [2] All documents, plans records and correspondence regarding administrative appeal ZB-2025-000042 filed on or about July 31, 2025 by [an identified individual] of Anderson & Kreiger LLP regarding …Hawes St. The Town responded on August 18, 2025, providing a fee estimate. The Town subsequently provided further responses on September 10, 2025 and October 21, 2025. Unsatisfied with Town’s responses, Attorney Allen petitioned this office and this appeal, SPR25/3172, 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

Ben Kaufman SPR25/3172 Page 2 November 5, 2025 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. The Town’s August 18th, September 10th, and October 21st Responses In its August 18, 2025 response, the Town assessed a fee of $93.75 to produce the responsive records. It appears that the fee was subsequently paid. On September 10, 2025, the Town provided responsive records, but withheld other records pursuant to the attorney-client privilege, as well as Exemptions (a) and (c) of the Public Records Law. In addition, the Town provided two “logs” identifying the documents being withheld. In correspondence dated September 11, 2025 and October 7, 2025, Attorney Allen requested further clarification regarding the Town’s withholding of “the June 3, 2025 reasonable accommodation application and the April 25, 2025 plans submitted with it” under Exemptions (a) and (c). In its October 21, 2025 response, the Town stated: A disabled individual’s application for a reasonable accommodation is sufficiently private to be protected from disclosure from a public records request. In this case, the Town withheld the written application and a portion of the plans. Most of the plans were provided to you because those portions had been previously disclosed to the public. Two plan sheets showing the interior of the garage were withheld because those had not been previously disclosed. Current Appeal In his appeal petition, Attorney Allen argued, “[the Town] provides… no statutory basis, no citation to specific exemptions, and no explanation as to how the cited privacy concerns apply to the withheld materials.” In an email to this office on October 28, 2025, an attorney for Lawson & Weitzen, LLP confirmed that the appeal does not contest the withholding of records under the attorney-client privilege and only pertains to “Log 2,” which concerns documents withheld under Exemptions (a) and (c).

Ben Kaufman SPR25/3172 Page 3 November 5, 2025 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. 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). Second Clause – Privacy Analysis under the second clause of 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.

Ben Kaufman SPR25/3172 Page 4 November 5, 2025 This clause 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 the second clause of 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 clause 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 September 10, 2025 response, the Town provided a document referred to as “Log 2,” identifying two documents: a letter described as a “reasonable accommodation application” and “plans” submitted with the identified letter, which were both withheld under Exemptions (a) and (c). In its October 21, 2025 response, the Town argued, “[a] disabled individual’s application for a reasonable accommodation is sufficiently private to be protected from disclosure from a public records request…” Upon review, the Town did not cite a statute in support of withholding the responsive records pursuant to Exemption (a) of the Public Records Law. The Town is reminded that for Exemption (a) to apply, a statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Accordingly, the Town must clarify which statute permits it to withhold the records. Based on the Town’s response, it is additionally unclear how the Town may withhold the responsive records pursuant to Exemption (c) of the Public Records Law. In this case, the Town has not established how the withheld records contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it is uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. The Town must also 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. As a result, the Town has not met its burden to withhold responsive records under Exemption (c) of the Public Records Law.

Ben Kaufman SPR25/3172 Page 5 November 5, 2025 Consequently, the Town must explain with specificity how Exemptions (a) and (c) apply to the withheld records. See G. L. c. 66, § 10(b)(iv) (a 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”). It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. 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). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Attorney Allen 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. Attorney Allen may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeffrey P. Allen, Esq.