Patrick Higgins v. Swansea, Town of - Recreation Commission (SPR 20160172)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 23, 2016 SPR16/172 Mr. Arthur D. Frank Jr., Esq. 209 Bedford Street, Suite 402 Fall River, MA 02720 Dear Attorney Frank: I have received the petition of Patrick Higgins appealing the response of the Town of Swansea-Recreation Commission (Commission) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Higgins is appealing your response made on March 7, 2016 pertaining to his original request made on December 28, 2015 where he requested to inspect the following records: 1. All resumes and/or applications for the Recreation Coordinator position which is on the agenda for interviews on October 21, 2014; 2. All invoices, minutes, executive session minutes, agendas, applications for employment; 3. All contracts by and between the Commission and any entity; 4. All emails sent to or received at any of the three (3) Commission email addresses; and 5. Ledgers regarding the payments received by any person who registered their child to attend the unlicensed summer day camp alk/a Summer program for all dates after January 1, 2013 to present. Related appeal Mr. Higgins made a similar request to the Commission on October 29,2015. The Commission provided a response to this request on November 6, 2015 and a subsequent response on December 30, 2015, which Mr. Higgins previously appealed. See SPR16/046; SPR16/073 Determination ofthe Supervisor ofRecords (February 18, 2016). 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Arthur D. Frank Jr., Esq. SPR16/172 Page 2 March 23,2016 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 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 your response dated March 07, 2016 you cited exemptions but failed to explain with specificity why these records are being withheld from disclosure. 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. Request 1 -Recreation Coordinator records The Commission is withholding resumes and applications for employment claiming "these documents are privileged," citing Exemption (c), the privacy exemption to the Public Records Law. G. L. c. 4, § 7 (26) (c). The Commission's response did not contain the specificity required in a denial of access to public records. Instead, the Commission's response merely cites Exemption (c) without any further explanation as to the exemption's applicability to the requested records. The Commission is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Exemption (c) permits 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) First clause 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. The Supreme Judicial Court of Massachusetts 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 Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Id. Second clause The second clause of Exemption (c) does not protect all data relating to specifically

Mr. Arthur D. Frank Jr., Esq. SPR16/172 Page 3 March 23,2016 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, 3 80 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, 377 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. You failed to explain why the responsive records could not be redacted to omit information that may be exempt pursuant to the two clauses of Exemption (c). Once the records are redacted to remove information regarding a specifically identified individual subject to protection under Exemption (c) the exemption would no longer apply with respect to the remaining content of the responsive record. Accordingly, I find the Commission has failed to satisfy its burden with respect to the application of Exemption (c) to justify withholding entire portions of the responsive record; the record may be redacted to omit such information with the remaining portion subject to mandatory disclosure. Request 2- invoices, minutes, agendas, employment applications In this response you cited Exemption (a) of the Public Records Law for withholding executive session minutes. As such, a review of Exemption (a) of the Public Records Law is warranted. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Mr. Arthur D. Frank Jr., Esq. SPR16/172 Page 4 March 23, 2016 This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In your response you cited Exemption (a) but failed to cite an underlying statute in denying access to records. A records custodian citing Exemption (a) must state, with specificity, the applicability of any statutory basis for denial of access to public records. Request 3- Commission contracts Mr. Higgins requested copies of Commission contracts. Your response failed to state whether any responsive contracts exist. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). While the Commission is not required to create records, it does have an obligation to use its superior knowledge to determine whether such records exist. Requests 4 and 5- Commission emailJ· copies of ledgers With respect to email records responsive to Request 4, your response explained that the records would "be either copied or downloaded and printed since the Town does not have public portal for their online review nor does the Town have the capability to segregate/redact online." It is important to note that in his original December 28 request, Mr. Higgins sought only to inspect the responsive records without being charged a copying fee. A custodian may not assess a fee for the mere inspection of public records, unless compliance with such request for inspection involves "search time" in which case a fee under may be assessed. 950 C.M.R. 32.06(4). Accordingly, the Commission may not assess a fee for copies of records that are requested for inspection. With respect to records that exist responsive to Request 5 you provided a fee estimate. A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1O (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

Mr. Arthur D. Frank Jr., Esq. SPR16/172 Page 5 March 23,2016 written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.05) per page for a black and white single or double-sided photocopy of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate ofthe lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). Order I find the Commission has failed to meet its burden of explaining with specificity how portions of responsive records are exempt from disclosure. Accordingly, the Commission is hereby ordered, within ten (1 0) days of this order, to provide Mr. Higgins with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Commission maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Higgins 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. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is 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 hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to

Mr. Arthur D. Frank Jr., Esq. SPR16/172 Page 6 March 23, 2016 conduct training workshops on the Public Records Law upon re est. Please contact my office directly at the telephone number provided in this determination r further information. cc: Mr. Patrick Higgins