Cynthia B. Gardner v. Cotuit, Village of - Fire District (SPR 20170781)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 21, 2017 SPR17/781 Charles Eager Cotuit Fire District 64 High Street Cotuit, MA 0263 5 Dear Charles Eager: I have received the petition of Cynthia Gardner appealing the response of the Cotuit Fire District (District) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Gardner requested "a list of all firefighter[s] who have gone out on disability under General Laws chapter 41 section 11 lf, since July 1, 2008 till today" with the list including "their names, date they went on disability, and the date they returned to duty." Ms. Gardner also requested "copies of employee benefit sheets which include vacation and sick time earned since July 1, 2008 and present for all firefighters." 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, § lOA(d); 950 C.M.R. 32.03(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, § 1O (b )(iv); 950 C.M.R. 32.06(3); 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). 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Charles Eager SPR17/781 Page2 June 21, 2017 Previous appeal The requested records were the subject of a prior appeal. See SPRl 7/756 Determination of the Supervisor of Records (June 5, 2017). Following the June 5th determination, the District provided a supplemental response to Ms. Gardner on June 5, 2017 in which the District states that "the specified 'list' does not exit ... " and explaining its position regarding the applicability of Exemption ( c) of the Public Records Law "[e ]ven if such a list existed." See G. L. c. 4, § 7(26)(c). Ms. Gardner objects to this response and this appeal (SPRl 7/781) was opened. The District's June fh response In its June 5th response, the District indicates "while the public records law requires a municipality, such as the Cotuit Fire District, to respond to requests for records, it does not require municipalities to create records, including lists, in order to respond to a public records request." You also indicate that "[i]n this case, the specified 'list' does not exist and the Cotuit Fire District respectfully declines to create such a list as outside the requirements of the public records law." Under the Public Records Law, the District is not required to create a record in response to a public records request. See G. L. c. 66, § 6A( d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). However, "furnishing a segregable portion of a public record shall not be deemed to be creation of a new record" where responsive records need to be extracted from an existing data. See 950 C.M.R. 32.07(1)(f). Consequently, it is unclear which of the responsive records the District has available. It is my determination that the District has not met its burden as to the extractability of the files it has in its possession and must confirm whether it has the "list" and/or the "benefit sheets" in its possess10n. Exemption (c) You also indicate that "[e ]ven if such a list existed, however, your request for such [a] list, as well as your related requests for benefits sheets for all firefighters 'which include vacation and sick time earned since July 1, 2008 to present for all firefighters' is respectfully denied because these requests fall within exemption(s) to the public records law. M. G. L. c. 4 § 7, (26)( 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).

Charles Eager SPR17/781 Page 3 June 21, 2017 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). Courts have held that medical and personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual. Id. at 438. 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. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals v. Dep't of Agric. Res., 2017 Mass. LEXIS 390, at * 19-20 (June 14, 2017). 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 *20 n. 13; 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 balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. People for the Ethical Treatment of Animals, 2017 Mass. LEXIS 390, at* 19. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at *20. In support of your claim that the requested records are personal records that are exempt from disclosure, you indicate that these records contain "personal identifying information ... that could be used to identify the employee even if redacted, such as their job title and date of hire." You indicate that, "[t]he benefit sheets also provide private information related to the physical and/or mental health of fire department employees inasmuch as they include information such as the numbe.r of sick days earned and used by each employee; the number of sick days carried over from the prior year; number of personal days used; the number of bereavement leave used, as well as other compensated time off, etc."

Charles Eager SPRl 7/781 Page 4 June 21, 2017 You also indicate that "the records sought also are exempt medical information regarding health and production of these records would constitute an unwarranted invasion of personal privacy of the individual firefighter( s) whom you have requested to be so named." You further indicate that "[n]otwithstanding this objection, the Cotuit Fire District will make available to you for your inspection and copying copies of the Collective bargaining Agreement in effect for the period of July 1, 2008 through May 18, 2017 ... " It is unclear why the entire benefit sheets which include information on vacation and sick time earned or used by firefighters are not public records. See Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (concluding that "information only as to the names of school committee employees, and the dates and generic classifications, eg., 'sick day,' 'personal day,' etc. of their absences Were not 'intimate details of a highly personal nature that the legislature intended to exempt from mandatory disclosure.'"). Consequently, the District must explain why any non-exempt, segregable portions of the responsive records cannot be disclosed. See G. L. c. 66, § 10(a ). I understand a Public Records staff attorney contacted you about this appeal. Conclusion Subsequent to the intervention by a Public Records Division staff attorney, I learned that a representative from the District intends to provide Ms. Gardner with a response to her request. I will now consider this administrative appeal closed with the proviso that the District provides said response within ten business days. 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. Ms. Gardner may appeal the substantive nature of the District's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Cynthia Gardner