Andrew Ryan v. Boston, City of - Mayor's Office (SPR 20160064)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 24, 2016 SPR16/064 Ms. Caroline 0. Driscoll, Esq. Senior Assistant Corporation Counsel City of Boston One City Hall Square; Room 615 Boston, MA 02201 Dear Attorney Driscoll: I have received the petition of Andrew Ryan of The Boston Globe appealing the response of the City of Boston-Office of the Mayor (City) to a request for public records. G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Ryan requested an electronic copy of: 1. All emails and text messages to and from Matthew 0 'Neil from January 1, 2014 to December 3, 2015 (date of the request) and to and from Matthew O'Neil in 2012 and 2013, and 2. All emails and text messages to and from Michael Goldman from January 1, 2014 to December 3, 2015 and to and from Michael Goldman in 2012 and 2013. In his request, Mr. Ryan asked Laura Oggeri, Chief Communications Officer for Office of Mayor Martin J. Walsh, and the City, to provide Mr. Ryan with a numerical count of the responsive records prior to assessing any fees that the City may charge under the Public Records Access Regulations. On January 26, 2016, after several email communications between Ms. Oggeri and Mr. Ryan discussing the requests, the City provided Mr. Ryan with six hundred eight (608) emails which were saved to an electronic folder and provided via email. Ms. Oggeri's January 26 email response states that eleven (11) emails were withheld in their entirety and six (6) emails were redacted under Exemption (d) of the Public Records Law. In addition, another six (6) emails were withheld as "privileged," and the City redacted the names of the individuals within the header of each emails along with the non-government issued (personal) email addresses of those individuals. The City claimed that the privacy clause of Exemption (c) applied to withhold the email addresses. Ms. Oggeri failed to explain the use of the word, "privileged" to withhold records. To date the City has not provided Mr. Ryan with any response concerning his request for text messages to and from Matthew O'Neil and Michael OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Caroline 0. Driscoll, Esq. SPR16/064 Page 2 February 24, 2016 Goldman and City officials and personnel. Mr. Ryan appealed the non-response and the exemption claims. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The City must provide Mr. Ryan with a response concerning his request for text messages. 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). In a February 10,2016 discussion with an attorney on my staff, you explained that on January 31 the City provided Mr. Ryan with a list ofthe names of the individuals within the header of each email and the corresponding identification number of the email record. The City had previously redacted the information because it contained the personal email addresses of the senders and receivers of the emails. The City has now provided Mr. Ryan with all of the emails, except two that the City is still withholding and that involve an on-going deliberative process under Exemption (d). Finally, Attorney Driscoll informed my staff attorney that the City will provide the non-government (personal) email addresses, if directed to do so in the Supervisor of Records written determination. Exemption (c) -Email Addresses The City is withholding the non-government issued (personal) email addresses of individuals listed in the headers ofthe email documents as private under Exemption (c). It appears that not all of the email addresses are from private citizens; most are City employees. Exemption (c) applies to: 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

Ms. Caroline 0. Driscoll, Esq. SPR16/064 Page 3 February 24, 2016 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 of the 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 mlJSt 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 ofExemption (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. A public employee has a diminished expectation of privacy with respect to use of personal email used in an official capacity. The use of personal email addresses by government officials, employees and/or board and commission members while conducting any day-to-day business of a government entity renders the emails and email addresses public records. At least one Court has found that personal email addresses used for a public purpose by a government employee are a public record. See Mechling v. City of Monroe, 152 Wn. App. 830 (2009) (Personal email addresses used by City Council members to discuss city business are not exempt from disclosure under public disclosure statutes). Any email addresses for City employees are not information or records that constitute "intimate detail of a highly personal nature" under the privacy clause ofExemption (c). Exemption (d) The City initially withheld eleven (11) emails in their entirety and portions of six ( 6) emails were redacted of content pursuant to Exemption (d) of the Public Records Law. Exemption (d), also known as the deliberative process exemption, allows for withholding of records that are: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably

Ms. Caroline 0. Driscoll, Esq. SPR16/064 Page 4 February 24, 2016 completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, §7 (26) Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office ofHuman Services, 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Environmental Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.) In Ms. Oggeri's January 26 response and in your discussion with a member of my legal staff, it was explained that the City is withholding two (2) emails at this time because the content of the emails concerns on-going deliberative matters regarding a workforce housing policy that the City is still developing, and an initiative that the Mayor's Education Cabinet is still deliberating. In your February 10 discussion with this office, you stated that both on-going deliberations on the housing policy and education matters are not finalized and no decisions have been made. It is the City's intention to release the two (2) emails that have been withheld concerning these matters once there are no further deliberations and a final decision is rendered. It is, therefore, the finding of this office that the City may withhold the requested records from disclosure pursuant to Exemption (d) of the Public Records Law until such time as the deliberations have ended. To assist in the resolution of this matter the City is hereby ordered, within ten (10) days ofthis order, to provide Mr. Ryan with copies of the email addresses for City employees listed in the headers of all emails already provided to him. The City is also hereby ordered, within ten (1 0) days of this order, to provide Mr. Ryan with a written response concerning his request for text messages. This written response must clarify the position of the City with respect to any remaining records that have not yet been provided. If the City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Ryan 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

Ms. Caroline 0. Driscoll, Esq. SPR16/064 Page 5 February 24, 2016 of any such response that accompanies the records 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. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist the City in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business ho rs to answer general questions regarding the Public Records Law. In addition, members of m staff will visit a records custodian in person to conduct training workshops on the Publ' c Records Law upon request. Please contact my office directly at the telephone nu lo for further information. cc: Mr. Andrew Ryan Ms. Laura Oggeri Enclosure