Dreslinski, Michael v. Holden, Town of - Town Manager (SPR 20150486)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 22, 2015 SPRlS/486 Mr. Jacquelyn Kelly Town Manager Town of Holden 1204 Main Street Holden, MA 01520 Dear Ms. Kelly: I have received the petition of Michael Dreslinski appealing the response of the Town of Holden (Town) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Dreslinski requested a copy of a letter discussed at a Holden Board of Selectmen (Board) meeting. You denied his request in a response dated May 21,2015, claiming the responsive record may be withheld under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Open Meeting Law In your response dated May 21, 2015, you indicate the responsive letter was discussed at a May 4, 2015 Board meeting. Matters concerning documents discussed at meetings of public bodies in the Commonwealth potentially invoke the Open Meeting Law. See G.L. c. 30A, §§ 18-25. An interpretation of the Open Meeting Law falls within the authority of the Division of Open Government in the Office of the Attorney General (AGO). The AGO reviewed this matter to determine whether the responsive letter was "used" by the Board at the May 4 meeting. The AGO informed this office of its determination in a letter dated September 11, 2015. In this letter, the AGO indicated that "[a]ll documents and exhibits that are used in an open session meeting 'shall be public records in their entirety and not exempt from disclosure pursuant to any of the exemptions' to the Public Records Law, although certain material may be exempt from disclosure to the public as personnel information." See G.L. c. 30A, § 22(e). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Jacquelyn Kelly SPR15/486 Page Two September 22, 2015 However, the AGO determined that the responsive letter was not "used" at an open meeting for the purposes of the Open Meeting Law because the Board did not introduce the letter at the meeting, nor did the Board discuss the letter's contents at the meeting. Whereas the AGO has determined that the letter was not "used" at the May 4 meeting, an exemption to the Public Records Law may apply to withhold this record. I will now determine whether the Town has met its burden in withholding the record under an exemption to the Public Records Law. See G. L. c. 66 § lO(b). 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, § 1 0( c); 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). The Public Records Law states that "the burden shall be upon the custodian to prove with spec{ficity the exemption which applies." G. L. c. 66, § 1 0( c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Exemption (c) In your May 21 letter, you cite Exemption (c) to support your withholding of the responsive letter. 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). Based on the Town's response, 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

Ms. Jacquelyn Kelly SPR15/486 Page Three September 22, 2015 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 ofReal 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 ofthis 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). This clause requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature." If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 377 Mass. at 156. In your May 21 response, you indicate the letter was presented to the Board "as a matter of personal concern" and the "full text of the letter will not be included in the minutes as it would disrespect confidentiality." You state that, as a result, "we have applied Exemption (c) of the MA Public Records Law" to this record and you provide the text of the second clause of Exemption (c). The Town's response merely cites Exemption (c) without any further explanation as to the exemption's applicability to the requested record. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Further, the Town has not explained whether any portion of the responsive record constitutes "an intimate detail of a highly personal nature" as required to withhold records under Exemption (c). Therefore, I will not opine on whether the privacy interests of the individual outweigh the public interest in disclosure of this information. As a result, the Town failed to meet its burden of explaining with specificity how the responsive letter, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Ms. Jacquelyn Kelly SPR15/486 Page Four September 22, 2015 Conclusion Accordingly, whereas the Town has not overcome the presumption that the requested record is public, the Town is hereby ordered, within ten (10) days, to provide Mr. Dreslinski with the requested record. If the Town maintains that any portion of the responsive record is exempt from disclosure it must, within ten (l 0) days provide to Mr. Dreslinski a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. . Williams Supervisor ofRecords cc: Mr. Michael Dreslinski Mr. Jonathan Sclarsic, Esq.