Herman, Colman v. Boston, City of - Public Library (SPR 20150833)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords November 20, 2015 SPRlS/833 Ms. Melina Schuler Boston Public Library 700 Boylston Street Boston, MA 02116 Dear Ms. Schuler: I have received the petition of Colman Herman appealing the response of the Boston Public Library (Library) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested a copy of a letter placed in a specifically named former Library employee's file. You initially denied Mr. Herman's request in an email dated October 20, 2015 in which you stated "[t]he letter is exempt under the personnel records exemption." In a subsequent response dated October 21,2015, you stated the record is being withheld under Exemption (c) of the Public Records Law because it contains personal information that, if released, may constitute an invasion ofthe former employee's privacy. G. L. c. 4, § 7(26)(c). Mr. Herman appealed this response. 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, § 1O (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 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Melina Schuler SPR15/833 Page Two November 20, 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. 427,432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). The records custodian's classification of materials as "personnel information" is not conclusive. Wakefield Teacher's Ass'n v. Sch. Comm. ofWakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents' label, is crucial to the analysis. See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 386 (2002). The Supreme Judicial Court of Massachusetts has found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield, 431 Mass. at 798. The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11- 01184-A (June 14, 2013). Response dated November 20, 2015 In an email dated November 20, 2015, Caroline Driscoll, an attorney in the City of Boston (City) Law Department, states "the [Library] is withholding this letter per [E]xemption (c) of the Public Records Law because the letter contains personal information that, if released, may violate [the individual's] right to privacy." Attorney Driscoll further explains "[t]he letter that you are requesting is of a highly personal nature and contains information that was relevant to the [the individual's] continued employment at the Boston Public Library." Further, in separate conversations with myself and a member of my staff, you and Attorney Driscoll indicated that the sole withheld record relates to the former employee's continued employment at the Library. You both explained that this record is not a separation agreement; such a record would be subject to disclosure.

Ms. Melina Schuler SPR15/833 Page Three November 20,2015 As a result, I find the Library has met its burden to withhold the responsive letter because it contains information that is "useful in making employment decisions" as required by the first clause of Exemption (c). Accordingly, I will consider this appeal closed. yours, cc: Mr. Colman Herman Ms. Caroline Driscoll, Esq.