Colman Herman v. Massachusetts Housing Finance Agency (SPR 20160767)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 7, 2016 SPR16!767 Ms. Beth Elliot, Esq. General Counsel Massachusetts Housing Finance Agency One Beacon Street Boston, MA 02108 Dear Attorney Elliot: I have received the petition of Colman Herman appealing the response of the Massachusetts Housing Finance Agency (MassHousing) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested copies of"[a]ny and all settlement agreements, separation agreements, and/or the like reached with present and/or past MassHousing employees in 2015 and 2016." Previous appeal This request was the subject of a previous appeal. See SPR16/484 Determination of the Supervisor of Records (August 10, 2016). In my August 10 determination I found MassHousing had not met its burden to justify its fee estimate for the provision of responsive records. I ordered MassHousing to review Mr. Herman's request and provide a written response to Mr. Herman, prepared in a mam1er consistent with the order, the Public Records Law and its Access Regulations (Regulations). MassHousing responded to the order by providing a revised fee estimate. Mr. Herman paid the revised amount and, in a response dated September 14, 2016, received four (4 ) responsive documents. MassHousing redacted certain information within these documents under Exemption (c) ofthe Public Records Law. G. L. c. 4, § 7(26)(c). Mr. Herman appealed these redactions and this appeal (SPR16/767) was opened as a result. The Public Records Law 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Beth Elliot, Esq. SPR16/767 Page 2 October 7, 2016 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). 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. Exemption (c) MassHousing redacted the name of the former employee as well as the personal pronouns that would identify the gender of the former employee from each of the responsive documents. MassHousing also redacted the title of the position held by the former employee within two (2) responsive documents. MassHousing redacted this information under Exemption (c). Exemption (c) permits the 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) 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 (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. 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

Ms. Beth Elliot, Esq. SPR16/767 Page 3 October 7, 2016 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. Settlement agreements are public records, subject to redaction This office has consistently found that settlement agreements are public records, and may not be withheld entirely pursuant to either the first or second clause of Exemption (c) of the Public Records Law. Several decisions by Massachusetts courts support the notion that settlement agreements are public records that must be disclosed, but may be redacted. See Champa v. Weston Public Schools, 473 Mass. 86 (2015); see also Memorandum of Decision and Order in the matter between Emily Bazelon and the Town of South Hadley, Civil Action No. 11- 212; see also Globe Newspaper Company, Inc. v. Executive Office of Administration and Finance, Suffolk Superior Court Civil Action No. 11-01184-A (June 14, 2013), 34-35. MassHousing erred in r~dacting identifying information in settlement agreements In its September 14 response, MassHousing claims the responsive records constitute "exempt personnel information" and indicates "[t]he fact that a departing employee entered into a separation agreement is personnel information of a personal nature relating to a particular individual." MassHousing explains "[p] ersonally identifying information has therefore been redacted as exempt under the first clause" of Exemption (c). The courts have indicated that specific categories of records may be redacted under the first clause of Exemption (c). See Globe, Suffolk Superior Court, No. 11-01184-A at 34-35. It is important to note, however, that the Globe decision clearly states governmental entities are not permitted "under the principles of governing law to redact ... the names ofp ublic employees who receive public funds in settlements of claims, or other information on the basis simply that it might facilitate identification of those individuals." See id (emphasis added). Accordingly, I find MassHousing has not met its statutory obligation to justify redaction of identifying information from the responsive settlement agreements pursuant to the first clause of Exemption (c).

Ms. Beth Elliot, Esq. SPR16/767 Page4 October 7, 2016 MassHousing also claims the redactions are proper under the second clause of Exemption (c) and states "the fact that a specific employee's departure from MassHousing involved a separation agreement implicates privacy interests." You further indicate " [t ]he information is not available from other sources, could result in personal embarrassment to a person of normal sensibilities and can be seen as an intimate detail of a highly personal nature." In addition, you claim "the public interest in disclosure does not outweigh this privacy interest particularly as the remainder of the [responsive agreements], including all terms pertaining to financial compensation, has been disclosed. You cite Champa and Georgiou v. Comm'r ofthe Dep't of Indus. Accidents, 67 Mass. App. Ct. 428, 434 (2006) to support its position. The holding Champa case relates to "settlement agreements between a public school and the parents of a public school student who requires special education services." See Champa, 473 Mass. at 87. MassHousing has not shown that the agreements responsive to Mr. Herman's request are associated with "a public school student who requires special education services," accordingly I find MassHousing failed to show a nexus between the holding in Champa and the present request. Further, the Georgiou court acknowledged that aggregated information "may intensify the invasion of privacy and weigh against disclosure;" however, the privacy concerns in Georgiou pertained to disclosure of employees' names, addresses, coupled with the fact that the employees were sufficiently disabled to be out of work five or more days. See Georgiou, 67 Mass. App. Ct. at 435. The court found this information to be "more akin to that provided to a State agency in connection with obtaining government benefits" and a "distant kinship" to the medical clause of Exemption (c). Id. at 436. In identifying the existence ofprivacy interests, the factors for consideration include: whether disclosure would result in personal embarrassment to an individual of normal sensibilities, whether the materials sought contain "intimate details" of a "highly personal" nature, and whether the same information is available from other sources. See Pottle v. School Committee of Braintree, 395 Mass. 861, 866 (1985); see also Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 595 (2005). In the instant appeal, however, the responsive records reveal that an employee departed MassHousing. MassHousing has not established how disclosure of this information would result in embarrassment to an individual of normal sensibilities, reveal medical information, nor disclose such private information as a person's income or relationship with other private persons as exemplified by case law. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985) (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); Collector of Lynn, 377 Mass. at 157.

Ms. Beth Elliot, Esq. SPR16/767 Page 5 October 7, 2016 Accordingly, I find MassHousing has not established how the redacted information constitutes an "intimate detail of a highly personal nature" under the second clause of Exemption (c) of the Public Records Law. See Globe, Suffolk Superior Court, No. 11-01184-A at 40-42. Order I find MassHousing has failed to show a nexus between the ruling in either Champa or Georgiou and the records responsive to Mr. Herman's request. I do find, however that the holding in Champa, as well as the holding in Globe, and South Hadley clearly state that settlement agreements are public records. In particular, the holding in Globe states that the identity of a public employee may not be withheld absent a specifically stated exemption and explanation. I find MassHousing has failed to satisfy its statutory obligation to state, with specificity, the application of an exemption to permit withholding of such identifying information. Accordingly, MassHousing is hereby ordered to review Mr. Herman's request and provide a revised written response to Mr. Herman, prepared 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 of this resp se to this office at pre@sec. state.ma. us. cc: Mr. Colman Herman