K.C. Myers v. Brewster, Town of - Town Administrator (SPR 20160173)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 23, 2016 SPR16/173 Ms. Sarah A. Turano-Flores, Esq. Nutter McClennen & Fish, LLP 1471 lyannough Road P.O. Box 1630 Hyannis, MA 02601-1630 Dear Attorney Turano-Flores: I have received the petition ofK.C. Myers of the Cape Cod Times appealing the response of the Town of Brewster (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, K.C. Myers requested a copy of the entire video of the November 16,2015 Special Town Meeting including the after the gavel comments allegedly made by the Town Moderator. The Town denied K.C. Myers' request in a letter dated as a video that is not a "public record," further citing Exemptions (c) and (e) ofthe Public Records Law. G. L. c. 4, § 7 (26) (c), (e). K.C. Myers appealed this response, stating that the entire recording with the comments had been posted to the Town's website and then removed. K.C. Myers further explained that the video was recorded by a person under contract with the Town. 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). The video recording is public record The Town claimed the portion of the video recording containing the Town Moderator comments after the gavel was struck to close the Special Town Meeting is not a public record. The Town believes that, because the video was not a record "made or received by a government OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Sarah A. Turano-Flores, Esq. SPR16/173 Page 2 March 23, 2016 official or employee." In your response you explain that the video was posted "inadvertently" to the Town's website "by the Town's contract videographer." Accordingly, whereas the Town has a contract with the videographer it cannot claim the record is not a Town record. The videographer was contracted by the Town to record meetings; therefore, the videographer, for the purposes of the Public Records Law, would be considered an agent for the Town. I find that the Town has not supported its argument that the entire video is not a public record. Exemption (c) -privacy clause The Town claims that even if the videographer was an officer or employee of the Town, the after-gavel portion of the video recording would be exempt as a public record because its disclosure would constitute an unwarranted invasion of privacy. Exemption (c) ofthe Public Records Law 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 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). Only the second clause of Exemption (c) has been cited by the Town as applicable to withhold the entire video recording. 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 fights 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.

Ms. Sarah A. Turano-Flores, Esq. SPR16/173 Page 3 March 23, 2016 As the Public Records Law favors disclosure, the second clause of Exemption (c) will only apply where the privacy interest of the record subject outweighs the public interest in disclosure. Attorney General v. Collector of Lynn, 377 Mass. 151, 156 (1979). However, unless the detail in question is an intimate detail of a highly personal nature, the balancing test discussed above does not apply. In its response the Town claims the record is exempt as "there is no public interest that overrides the invasion of privacy that would occur tifthe recording were made public." The Town, however, failed to state any "intimate details of a highly personal nature" that would be contained in the withheld recording. A custodian must satisfy the first step of the test under the second clause of Exemption (c) to support a finding of nondisclosure. The Town failed to satisfy the first step. Accordingly, I find that the Town has not met its burden of specificity in denying access to a public record pursuant to the second clause of Exemption (c). Exemption (e) -personal notes The Town claims that Exemption (e) applies to withhold the entire video because the after gavel portion of the video was neither created nor maintained as part of the files of a governmental unit. Exemption (e) Exemption (e) applies to: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, §7 (26) (e) The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work related records that can be characterized as "personal" to the employee, such as notes created to refresh an employee's memory of a work related activity or notes created by an employee to assist in preparing reports for other employees ofthe governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. The Town has failed to show how the responsive video recording satisfies the first criterion of Exemption (e). Accordingly, I find the Town has failed to meet its burden to show the applicability of Exemption (e) to the responsive portion of the video recording.

Ms. Sarah A. Turano-Flores, Esq. SPR16/173 Page 4 March 23, 2016 Order I find the Town has not met its burden under the Public Records Law to show that the responsive record is not public, subject to mandatory disclosure. Accordingly, the Town is hereby ordered, within ten (10) days of this order, to provide K.C. Myers with a revised response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy ofthis 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 making and responding to requests for public records I advise a review of 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 recor custodian in person to conduct training workshops on the Public Records Law upon req st. Please contact my office directly at the telephone number below for further in£ 1i n. cc: K.C. Myers Mr. Michael Embury, Town Administrator