Emilie L. Grossman, Esq. v. Andover, Town of - Town Clerk (SPR 20171003)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 4, 2017 SPR17/1003 Lawrence Murphy Town Clerk- RAO Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Mr. Murphy: I have received the petition ofEmilie Grossman, Esq., of Rosen Law Office, P.C. on behalf of her client, appealing the response of the Town of Andover (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Grossman requested twelve categories of records regarding the Spring Grove Cemetery and the Spring Grove Cemetery Trust, including records related to an identified person. You informed an attorney in the Public Records Division on July 11th and July 2ih that all records were provided except records responsive to Request No. 6 regarding an identified person's employment history, and Request No. 12 regarding firearms records relating to an identified person. The Town is withholding the employment history pursuant to Exemption (c) of the Public Records Law, and withholding the firearms records pursuant to G. L. c. 66, § lOB as it operates through Exemption (a). Attorney Grossman appealed the Town's continued intent to withhold the records responsive to Requests No.6 and 12. 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 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

Lawrence Murphy SPR17/1003 Page2 August 4, 2017 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 (a) -firearms records In your May 19th response you explained to Attorney Grossman that the Town is withholding the firearms records pursuant to G. L. c. 66, § lOB as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). Exemption (<:t), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure ofrecords if a statute mandates nondisclosure. Gen. Chemical Corp. v. Dept. ofEnvtl. Quality Eng' g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under a statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The applicable statute that the Town has stated applies to withhold the responsive firearms records concerning the identified person is G. L. c. 66, § lOB. It states: The commissioner of the department of criminal justice information services, the department of criminal justice information services and its agents, servants, and attorneys including the keeper of the records of the firearms records bureau of said department, or any licensing authority, as defined in section 121 of chapter 140, shall not disclose any records divulging or tending to divulge the names and addresses of persons who own or possess firearms, rifles, shotguns, machine guns and ammunition therefore, as defined in said section 121 of said chapter 140, and names and addresses of persons licensed to carry or possess the same to any person, firm, corporation, entity or agency except

Lawrence Murphy SPR17/1003 Page 3 August 4, 2017 criminal justice agencies as defined in section 167 of chapter 6 and except to the extent such information relates solely to the person making the request and is necessary to the official interests of the entity making the request. G. L. c. 66, § lOB. The Town has not provided enough specificity in its response to withhold the firearms records concerning the identified person pursuant to G. L. c. 66, § lOB as it operates through Exemption (a) of the Public Records Law. No explanation has been offered as to whether the Town is the licensing authority as defined in section 121 of chapter 140 and thus entitled to withhold the records under G. L. c. 66, § lOB. I find that the Town must clarify whether it is the licensing authority that issued the requested firearms license records. Exemption (c) Your May 19th letter to Attorney Grossman and your July 2ih email to an attorney in the Public Records Division stated that the Town is withholding the identified person's employment history with the Town pursuant to Exemption (c) of the Public Records Law. The Town is also withholding firearms records pertaining to the identified person pursuant to 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). Where the Town has claimed that the first clause of Exemption (c), the personnel clause, applies to withhold the records, only the first clause will be analyzed in this determination. 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 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). The courts have discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). While statutorily exempting personnel information from the expansive definition of public records, the Massachusetts Legislature did not explicitly define "personnel [file] or information." G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor

Lawrence Murphy SPR17/1003 Page4 August 4, 2017 exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief ofPolice of Worcester, 58 Mass. App. Ct. 1, 5 (2003). The classification by custodians of records or materials as personnel information is not conclusive. Wakefield, 431 Mass. at 798. Instead, the nature or character of the documents, as opposed to the documents' label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. Employment history The Court also noted that not all information maintained in a personnel file is subject to exemption under the first clause of Exemption (c). Information maintained for the ordinary administration of employees, such as payroll records, does not constitute such personnel information. Wakefield, 431 Mass. at 799. The identified person who is the subject of the responsive employment history records is a public employee. Public employees have a diminished expectation of privacy with respect to public employment matters. George W. Prescott Publishing Company v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985). Certain otherwise personal information may be considered public if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (198); Globe Newspaper Co., 388 Mass. at 438. The substantial public interest in ascertaining the manner in which public officials perform their official duties will also operate to lessen that which may be considered personal with respect to a public employee. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979); New Bedford Standard Times Publishing Co. v. Clerk of the Third District Court of Bristol, 377 Mass. 404, 417 (1979); 1976-77 Op. Atty Gen. Mass. 157 at 12. ("It is my opinion that educational and professional training and experience are not exempted from disclosure by Exemption (c)."). The question of whether professional vocational qualifications and training may be exempted from disclosure pursuant to Exemption (c) of the Public Records Law is well settled. Massachusetts Courts have consistently recognized the public's interest in the qualifications and performance of government employees. John J. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 863-64 (1975); Rotkiewicz v. Sadowsky, 431 Mass. 748, 753 (2000); Daniel Lynch v. News Group Boston, Inc., 1 Mass. L. Rep. 9, 4 (1993); Charles Mazetis v. The Enterprise Publishing Co., 22 Mass. L. Rep. 380, 10 (2007). The Town's responses to Attorney Grossman do not provide any explanation of what records concerning the identified person's employment/job history it has in its possession and specifically how Exemption (c) allows the Town to withhold the job history in its entirety under the first clause of Exemption (c). The fact that these records or information may be held in a personnel file does not render the records completely exempt as personnel records under Exemption (c). The public has a paramount interest in gauging whether an individual has the requisite education and training for the particular position for which he or she was hired.

Lawrence Murphy SPR17/1003 Page 5 August 4, 2017 Employment history and firearms records The Town has claimed that the employment history and firearms records of the identified person may be withheld under the privacy clause of Exemption (c). 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. The second clause of Exemption (c) 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 (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (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 292 n.l3; 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. PETA, 477 Mass. at 291. 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 292. Both of the Town's responses merely state, "such documents will not be provided due to Exemption (c) (the Privacy Exemption)." The Town should be aware that individuals working for a government entity or in a public position have a diminished expectation of privacy. It remains unclear how records regarding access to the identified person's employment history and firearms records rise to the level of personal embarrassment to an individual of normal sensibilities, nor how they would reveal intimate details of a highly personal nature under Exemption (c). See PETA, 477 Mass. at 292. In addition, the Town must provide additional information regarding the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the requested scores and rankings in addition to the names of the applicants substantially outweighs the seriousness of any invasion of privacy. See id. at 291-92.

Lawrence Murphy SPR17/1003 Page 6 August 4, 2017 I find that the Town has not met its burden of providing enough detail in its response to withhold the employment history under the privacy clause of Exemption (c). The Town has not demonstrated in either its May or July responses how the privacy clause of Exemption (c) allows the Town to withhold the records or information in its entirety. Nor has the Town met its burden of proving why the responsive records could not be redacted under Exemption (c) or any other exemption in the Public Records Law. See G. L. c. 66, § 10(a); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281,289-90 (1979) (statutory exemptions are not blanket in nature). A Public Records Division attorney discussed this appeal with you on August 4th and a copy of the appeal file was provided to assist with the response. Conclusion Accordingly, whereas the Town has indicated that a subsequent response will be provided, I will consider this appeal closed with the proviso that the response is provided to Attorney Grossman in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Attorney Grossman may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Rebecca S. Murray Supervisor of Records cc: Emilie L. Grossman, Esq.