Mike Beaudet v. Somerville, City of - City Solicitor (SPR 20161102)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor of Records December 16, 2016 SPR16/1102 Jason D. Grossfield, Esq. Office of the City Solicitor City of Somerville 93 Highland A venue Somerville, MA 0214 3 Dear Attorney Grossfield: I have received the petition of Mike Beaudet of WC VB-TV appealing the response of the City of Somerville - City Solicitor Office (City) to a request for public records. G. L. c. 66, § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Beaudet requested the "names of all police personnel who have been terminated in the City since January 1, 2011." The City denied Mr. Beaudet's request pursuant to both clauses of Exemption (c) of the Public Records Law. Mr. Beaudet appealed. Prior appeal This request was the subject of a prior appeal. See SPRl 6/981 Determination of the Supervisor of Records (November 10, 2016). In my November 10 determination I found the City had failed to meet the statutory and regulatory obligation of explaining specifically why the responsive records were withheld pursuant to Exemption ( c ). I closed the appeal with the proviso that the City provide a response prepared in a manner consistent with this order, the Public Records Law and its Access Regulations (Regulations). The City provided a response to the order in a letter dated November 22, 2016 in which it continues to claim the requested records may be withheld under Exemption ( c) . Mr. Beaudet objects to this response and this appeal (SPRl 6/1102) was opened as a result. Exemption (c) In the November 22 response, the City indicated its intent to withhold the list of names of police personnel who have been terminated by the City from January 1, 2011 to the present pursuant to both clauses of Exemption (c) of the Public Records Law. Exemption (c) applies to: 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

Jason D. Grossfield, Esq. SPR16/l 102 Page 2 December 16, 2016 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). 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 applies to personnel information that is of a personal nature and relates to a specifically named individual. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. The Supreme Judicial Court has refined the analysis to be employed when considering the public record status of personnel records. The Court has defined personnel information that is "useful in making employment decisions regarding an employee" may be withheld pursuant to the first clause of Exemption (c) of the Public Records Law. Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000) (emphasis added). The City's response states that the responsive record "includes a list prepared by an attorney for the City, maintained by the law department for use in an employment matter." The record contains "personnel information, specifically, termination information including the name of the employee and the date of termination." You further pointed out, "the record is based upon the review" of the "City's personnel files or information and law department records" including termination letters. Despite these claims, I find the City has still failed to meet its statutory and regulatory obligations of showing how a list of names of former police officers who were terminated on a specific date is a record that was useful in making employment decision regarding an employee as required by the first clause of Exemption (c). Second Clause While the second clause of Exemption ( c) does not protect all data relating to specifically-named individuals, it does only permit 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) (emphasis added). 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).

Jason D. Grossfield, Esq. SPR16/1102 Page 3 December 16, 2016 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 of Exemption (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 response states that the second clause of Exemption ( c) will allow the City to withhold the list in its entirety, because the list cannot be redacted in such a way to "remove the 'personnel files or information,' meaning the termination information, linked to any particular name." You also claim "the nature of the content of the personnel information relating to a named individual may weigh strongly against disclosure to the public under the personal privacy exemption." I find the City has failed to meet the first-step in the analysis under the second clause of Exemption ( c) by showing how "names and termination dates" are intimate details of a highly personal nature under the second clause of Exemption (c). Order Accordingly, the City is hereby ordered to provide Mr. Beaudet with a revised response to the request 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 response to this office at pre@sec.state.ma.us. cc: Mike Beaudet