Richard Kramer v. Sharon, Town of - Public Schools (SPR 20160283)

The Commonwealth of Massachusetts William Frands Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 19,2016 SPR16/283 Ms. Lisa V. Whelan, Esq. Gelerman and Cabral, LLC Town Counsel-Town of Sharon 30 Walpole Street Norwood, MA 02062 Dear Attorney Whelan: I have received the petition of Richard Kramer appealing the response of the Town of Sharon-Town Legal Counsel (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Kramer requested a copy of the eight (8) most recent water bills issued to all members of the Board of Selectmen and Water Management Advisory Committee, and for all Town residents on Aztec Way and Inca Trail. On April 21, 2016, the Town denied Mr. Kramer's request pursuant to privacy clause of Exemption (c). Mr. Kramer appealed. 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 ofthe 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). Exemption (c) In your April21, 2016 response, you indicated that the Town has withheld the responsive water bills pursuant to the second clause of Exemption (c) of the Public Records Law. Exemption (c) applies to: personnel and medical files or information; also any other materials or data OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Lisa V. Whelan, Esq. SPR16/283 Page 2 May 19,2016 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 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. I d. 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 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 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. Your letter states that it is the Town Legal Counsel's opinion that because the request seeks information relating to specifically named individuals, the release of the information contained in the requested documents, would contain information constituting "intimate details of a highly personal nature." This office fails to see how the requested municipal water bills rise to the level of the records being an intimate detail under Exemption (c). Accordingly, a review of the second prong of the two-step analysis is not warranted. I find the Town has failed to meet its burden of specifically proving that the records may be withheld under the privacy clause of Exemption (c) as it has not established how such information constitute "intimate details." Accordingly, the Town is hereby ordered, within ten (10) days ofthis order, to provide Mr. Kramer with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Kramer 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

Ms. Lisa V. Whelan, Esq. SPR16/283 Page 3 May 19,2016 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, § 10(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 Town in responding to requests for public records I advise a review 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 hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon r quest. Please contact my office directly at the telephone number below for further info ation cc: Mr. Richard Kramer