Wallack, Todd v. Boston, City of - Law Department (SPR 20150316)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 2, 2015 SPRlS/316 Ms. Caroline Driscoll, Esq. City of Boston Law Department Boston City Hall, Room 615 Boston, MA 02201 Dear Attorney Driscoll: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the City of Boston (City) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested three categories of records related to Boston's affordable housing program. In Request 3, Mr. Wallack requested a "list of designated Affordable Housing Units that have been created," "including the name of the developer, date the units were created and full address for those units (including unit numbers)." This request was subject of a prior appeal by Mr. Wallack. See SPR15/142 Determination of the Supervisor ofRecords (April16, 2015). In the response associated with SPR15/142 the City provided responsive records while withholding the unit numbers associated with Request 3, stating that when "a privacy interest is implicated, there must be a balance between the public's right to know and any invasion of privacy- even through indirect means." The City cited a case associated with privacy but failed to state any exemption to the Public Records Law to justify the withholding of the unit numbers. See Georgiou v. Comm'r ofDep't oflndustrial Accidents, 67 Mass. App. Ct. 428 (2006). In my April 16 order I found the City had failed to meet its burden of specificity in denying access to public records. Accordingly, the City was ordered to provide all responsive records, detailing with specificity any denial of access to the remaining responsive records. In an email correspondence to Mr. Wallack dated April 21, 2015 Chief of Government Services Maribeth Cusick, Esq. clarified the City's position, indicating the City's intent to withhold records disclosing "the unit numbers, and thereby names of individuals who qualified for what is in essence a governmental housing subsidy because of their income level. The City is therefore withholding such information under G. L. c. 4, § 7 (26) (c). Exemption (c), also known as the privacy exemption, applies to: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Caroline Driscoll, Esq. SPR15/316 Page Two July 2, 2015 personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r ofthe Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Examples of"intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n.2. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 3 77 Mass. 151, 154 (1979). The second clause of Exemption (c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. In her email Attorney Cusick explained that it "would constitute intimate details of a highly personal nature and any public interest in the disclosure does not outweigh these privacy concerns." The City posits that revealing the unit numbers would result in disclosure of the names of individuals who qualified for affordable housing. Attorney Cusick further explained that the City has previously "provided voluminous information and records to [Mr. Wallack] on its affordable housing program. The only information that the City withheld were the unit numbers." Based upon the information provided by Attorney Cusick, I find the City has now met its burden of specificity in denying access to public records. Release of unit number information would risk disclosure of individual recipients of governmental assistance; this is the sort of information that the second clause of Exemption (c) is designed to protect.

Ms. Caroline Driscoll, Esq. SPR15/316 Page Two July 2, 2015 Accordingly, I find the City acted properly in withholding unit numbers for affordable housing recipients from disclosure pursuant to the second clause ofExemption (c) ofthe Public Records Law. n upervisor of Records cc: Mr. Todd Wallack