Nitschelm, Allen v. Acton-Boxborough Regional School District (SPR 20150427)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 4, 2015 SPRlS/427 Mr. D.M. Moschos, Esq. Mirick O'Connell, DeMallie & Lougee, LLP 100 Front Street Worcester, MA 01608-1477 Dear Attorney Moschos: I have received the petition of Allen Nitschelm appealing the response of the Acton Boxborough Regional High School (School) to his May 11, 2015 request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Nitschelm requested "a current paystub" for a specifically identified public employee. Responses from the School Mr. Nitschelm initially received a redacted copy of the paystub with no cover letter or any other information to support the numerous redactions made. Subsequent to the opening of this appeal, you provided a supplemental response to Mr. Nitschelm on behalf of the School in a letter dated September 10,2015. The September 10 response included a less-redacted version of the paystub along with an explanation regarding the redactions made. I have been informed that the School subsequently provided Mr. Nitschelm with another version of the paystub on September 18, 2015 with a corrected "year to date total." I will analyze the September 1 0 letter along with the paystub provided on September 18 to determine whether the School has met its burden under 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, § 10(c); 950 C.M.R. 32.08(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 town 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 ( c); see also Dist. Attorney for the Norfolk OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. D.M. Moschos, Esq. SPR15/427 Page Two December 4, 2015 Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. September 10 letter and pays tub provided on September 18 The paystub provided on September 18 reveals information such as the dates ofthe pay period, hours, rate, year to date earnings, current total pay, and current net pay. The School redacted other information on the paystub and explained the basis of each redaction in the September 10 letter. I will address each redaction below. Home address The School redacted the employee's home address from the paystub pursuant to Exemption (o) ofthe Public Records Law. G. L. c. 4, § 7(26)(o). Exemption (o) the home address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6 G. L. c. 4, §7 (26)(o) I find the School has satisfied its burden to justify redacting the home address of one of its employees pursuant to Exemption (o) of the Public Records Law. The third item under the headings "Type" and "YTD Earnings" The School claims that the third item under the headings "Type" and "YTD Earnings" found on the left side ofthe paystub may be redacted under Exemption (a) and Exemption (c). G. L. c. 4, § 7(26)(a), (c).

Mr. D.M. Moschos, Esq. SPR15/427 Page Three December 4, 2015 Exemption (c) Exemption (c) permits the withholding of: 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)(c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. 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. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause 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" while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Attorney Gen. v. Assistant Comm'r ofthe Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). 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 626 n. 2; 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). The School claims the disclosure of the third item under the headings "Type" and "YTD Earnings" would constitute an unwarranted invasion of the employee's privacy. The School informed this office that the redacted information pertains to a refund of an improperly made medical-insurance-related deduction. The School made the deduction in error and refunded the amount to the employee in this paycheck. Deduction information demonstrates how the employee has allocated the money received in the paycheck. Whereas the redacted information is related to the refund of a medical insurance-related deduction, I find the third item under the headings "Type" and "YTD Earnings" to be an "intimate detail" and the privacy interests of the individual outweigh the public interest in disclosure ofthis information. See Attorney Gen. v. Collector of Lynn, 377 Mass. at 156. Accordingly, I find the School has satisfied its burden to justify redacting the third item under the headings "Type" and "YTD Earnings" under the second clause of Exemption (c). As a result, I will not opine on the School's Exemption (a) claim.

Mr. D.M. Moschos, Esq. SPR15/427 Page Four December 4, 2015 "Deduction" amounts on the right side ofthe paystub; "Current Deductions" amount The School claims the disclosure of the "Deduction" amounts on the right side of the pay stub could constitute an unwarranted invasion of the employee's privacy. As discussed above, deduction information demonstrates how the employee has allocated the money received in the paycheck. In a phone conversation with a member of my staff, you indicated these deductions include health-insurance related deductions, tax-related deductions, and retirement-related deductions. I find these to be "intimate details" and the privacy interests of the individual outweigh the public interest in disclosure of this information. See id. As a result, I find the School has satisfied its burden to justify redacting the deduction information on the right side of the pay stub as well as the "Current Deductions" amount under the second clause of Exemption (c). In addition, any tax related deductions may be withheld for the reasons discussed below. "Current Taxable Gross" amount The School claims the "Current Taxable Gross" amount may be redacted pursuant to Exemption (a) and Exemption (c). As described in the School's September 10 response, this amount reflects the employee's "then-current taxable gross income" amount. Similar to the tax related deductions, and retirement-related deductions information discussed above, I find the amount of income that the employee must pay in taxes to be an "intimate detail" and the privacy interests of the individual outweigh the public interest in disclosure of this information. See id. Accordingly, I find the "Current Taxable Gross" amount may also be withheld under the second clause of Exemption (c). As a result, I will not opine on the School's Exemption (a) claim. Conclusion For the reasons discussed above, I find the School has sat' sfied its burden under the Public Records Law to justify each redaction on the paystub pro ided on September 18. Supervisor of Records cc: Mr. Allen Nitschelm