Douglas E. Wight v. Greenfield, Town of - Human Resources (SPR 20160342)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 3, 2016 SPR16/342 Mr. Dennis Helmus Town of Greenfield Department of Human Resources Town Hall 14 Court Square Greenfield, MA 01301 Dear Mr. Helmus: I have received the petition ofDouglas Wight appealing the response of the Town of Greenfield Human Resources (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wight requested a copy of seven categories of records. The Town provided existing responsive information, further stating that other responsive records did not exist. The Town denied Mr. Wight's request for a record responsive to his request for a resignation letter of a specific person. G. L. c. 4, § 7, (26) (c). Mr. Wight appealed this response. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical fonn 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). Failure to respond directly to requester In response to Mr. Wight's request you issued a memorandum to the Town Clerk. Presumably this memorandum was forwarded to Mr. Wight. It is not clear why you did not respond directly to Mr. Wight a records custodian must respond directly to a requester in writing with respect to a request for public records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Dennis Helmus SPR16/342 Page 2 June 3, 2016 Custodian is not required to cite exemptions for records that do not exist A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 1 O(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). It is not necessary to cite an exemption for a record that does not exist. Definitions under the Public Records Law and Access Regulations In a Public Records Law context, the individual making a public records request is defined as "requester," and the holder of the record and the government entity responding to the request is normally defined as, "records custodian." The Town is advised to only use the defined terms found in the Public Records Law Access Regulations (Regulations) when responding to a request for public records. See 950 C.M.R. 32.00 (definitions). Request to Answer a Question Portions of Mr. Wight's appeal, including hand-written comments on your memorandum to the Town Clerk included questions posed by Mr. Wight. Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. Accordingly, I will not opine upon questions posed by Mr. Wight as to whether any responsive records could or should exist. Exemption (c) The Town has denied Mr. Wight's request number four for any letter of resignation held by the Town regarding a specifically-named former employee pursuant to Exemption (c) ofthe Public Records Law. 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 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 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 has 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

Mr. Dennis Helmus SPR16/342 Page 3 June 3, 2016 (2000). For example, segregable portions of"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. 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 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. Other than citing the exemption I find the Town has failed to state with specificity how Exemption (c) of the Public Records Law allows the withholding of the record responsive to this portion of Mr. Wight's request. Order I find that the Town has failed to properly respond to a request for public records. Accordingly, the Town is hereby ordered to provide Mr. Wight with a revised response to his request without delay, prepared in a manner consistent with this order, the Public Records Law and its Regulations. If the Town maintains that any portion of any responsive records are exempt from disclosure it must provide to Mr. Wight a written explanation, with specificity, how a particular exemption applies to each record or each portion of a 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

Mr. Dennis Helmus SPR16/342 Page4 June 3, 2016 request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). To assist in requesting 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 records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number below for further information. .(\ ! I )j yours, cc: Mr. Douglas Wight