Bruce Rohr v. Canton, Town of - Board of Selectmen (SPR 20160928)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords November 1, 2016 SPR16/928 Jennifer Kemalian Administrative Secretary Town of Canton Board of Selectmen Memorial Hall 801 Washington Street Canton, MA 02021 Dear Ms. Kemalian: I have received the petition of Bruce Rohr appealing the response of the Town of Canton - Board of Selectmen (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, on January 4, 2016 and May 4, 2016 Mr. Rohr requested a copy of the outside audit report titled "Basketball Program Review" dated February 2, 2012, and the outside audit report titled "Swimming Pool and Skating Rink Operations Review" dated April 19, 2012. Previous appeal This request was the subject of previous appeal. See SPR16/326 Determinations of the Supervisor of Records (June 14, 2016; September 16, 2016). In my September 16 determination I closed the appeal with the proviso that the Town provides a response prepared in a manner consistent with the Public Records Law and its Access Regulations (Regulations). In a response dated September 22, 2016 the Town referred to its previous response dated August 25, 2016. Mr. Rohr informed this office he seeks further action with respect to this matter and this appeal (SPRl 6/928) 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 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). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Jennifer Kemalian SPR16/928 Page2 November 1, 2016 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § IO( 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 ofrecords shall provide written good faith estimate). Once fees are paid, a records custodian 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 request. Please contact my office directly at the telephone number provided in this determination for further information. The Town's August 25 response I understand Mr. Rohr is appealing the redaction of "the name of a key volunteer" throughout the "Basketball Program Review" report. In the Town's August 25 response you claim the "the name of a key volunteer" may be withheld under Exemption ( c) of the Public Records Law. 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, 432-34 (1983). Only the second clause of Exemption ( c) is applicable to this determination. 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 of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis.

Jennifer Kemalian SPR16/928 Page 3 November 1, 2016 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" while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Real Prop. Dep't, 380 Mass. at 625. The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n. 2; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature." If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979). The Town indicates that in light of Mr. Rohr's appeal petition "[i]t would appear that disclosure of the name of the volunteer could affect the reputation of the volunteer and thus constitute an unwarranted invasion of personal privacy." I find the Town has not met its burden of proving how the name, by itself, constitutes an "intimate detail of a highly personal nature" as required by Exemption (c). I understand an attorney on my staff contacted Attorney Richard Hucksam about this appeal. Conclusion Accordingly, the Town is hereby ordered to provide Mr. Rohr a copy of the responsive record with the "the name of a key volunteer" unredacted. 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. Supervisor of Records cc: Mr. Bruce Rohr Mr. Richard Hucksam, Esq.