Gregory Ryan v. Massachusetts Gaming Commission (SPR 20160313)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 24,2016 SPR16/313 Ms. Elaine Driscoll Massachusetts Gaming Commission 11 101 Federal Street, 1i Floor Boston, MA 0211 0 Dear Ms. Driscoll: I have received the petition of Greg Ryan of the Boston Business Journal appealing the response of Massachusetts Gaming 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. Ryan requested a "list of the current balance of accumulated sick and vacation time for all current [Commission] employees." In a response dated May 2, 2016, the Commission provided certain information but withheld employee names under Exemption (c) ofthe Public Records Law. G. L. c. 4, § 7(26)(c). 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 Dist. 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) The Commission provided lists of the current accumulated sick and vacation time of Commission employees. However, it redacted employee names "pursuant to the Privacy Exemption of the Public Records Law, G.L. c. 4, § 7(26)(c), which carries an exemption for personnel files and information." Exemption (c) permits the withholding of: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Elaine Driscoll SPR16/313 Page 2 May 24,2016 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. While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define "personnel [file] or information." G. L. c. 4, § 7(26)(c). The records custodian's classification of materials as "personnel information" is not conclusive. Wakefield Teacher's Ass 'n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character ofthe documents, as opposed to the documents' label, is crucial to the analysis. See Worcester Telegram & Gazette Corp. v. ChiefofPolice ofWorcester, 436 Mass. 378,386 (2002). There is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.l5. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. ofWestport, 401 Mass. 306, 309 (1987). While the medical reason for a given absence may be exempt from disclosure, the dates and generic classifications, such as "sick day" or "personal day," of absences is not information of a personal nature that may be withheld under Exemption (c). See id. at 308-09. Similarly, the first clause of Exemption (c) does not permit withholding of records identifying government employees coupled with a "current balance of accumulated sick and vacation time." Second clause Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r ofReal Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause 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"

Ms. Elaine Driscoll SPR16/313 Page 3 May 24,2016 while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Id. The Commission's May 2 response does not contain the specificity required in a denial of access to public records. Instead it merely cites Exemption (c) without any further explanation as to the exemption's applicability to the requested records. As a result, I find the Commission failed to satisfy its burden in responding to this records request, particularly in light of the Brogan decision. See Brogan, 401 Mass. at 308-09. I understand an attorney on my staff contacted you about this matter. Conclusion Accordingly, the Commission is hereby ordered, within ten (10) days ofthis order, to provide Mr. Ryan 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. 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 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, § 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 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 conduct training workshops on the Public Records Law upon reque t. Please contact my office directly at the telephone number provided in this determination o further information. cc: Mr. Gregory Ryan