Michael Smith v. Wareham, Town of - Town Administrator (SPR 20171163)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor .of Records September 6, 2017 SPR17/1163 Derek D. Sullivan Town of Wareham-Town Administrator Memorial Town Hall 54 Marion Road Wareham, MA 02571 Dear Mr. Sullivan: I have received the petition of Michael Smith appealing the response of the Town of Wareham Town Administrator (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 15, 2017, Mr. Smith requested a "copy of the internal affairs investigation relating to" an identified Wareham Police Sergeant and Police Chief "conducted during the fall of2016 by an independent investigator." In a response dated August 23, 2017, the Town denied his request, claiming that the responsive record was withheld from disclosure under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). 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 ofthe 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, § 1 O(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) 727-2832o Fax: (617) 727-5914 o sec.state.ma.us/pre pre@sec.state.ma.us o

Derek D. Sullivan SPR17/1163 Page 2 September 6, 2017 Procedure for appeals In a phone conversation with the Town, this office was notified that Mr. Smith did not provide a copy of the petition to the Town's records access officer. "In petitioning the Supervisor, the requester shall provide a copy of such petition to the records access officer associated with such petition." 950 C.M.R. 32.08(1)(h). A copy of the file was provided to the Town. The Town's August 23rd response In the Town's August 23rd response, the Town indicated that "[p]lease be advised that an 'internal affairs investigation' was not conducted relating to [these individuals]; rather, it was a personnel matter which was investigated. Accordingly, the documents you are requesting are related to a personnel matter and are therefore exempt under Massachusetts General Laws Chapter 4, Section 7, Twenty-sixth, (c)." Exemption (c) As the Town relies on Exemption (c) to withhold the responsive record, this exemption merits consideration. Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, 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 creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987). 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).

Derek D. Sullivan SPR17/1163 Page 3 Sept~mber 6, 2017 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. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985).; Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan, 401 Mass. at 309. The Town indicated in its response that the record was withheld because it was "a personnel matter which was investigated" without specifically explaining how the investigation is "useful in making employment decisions regarding an employee" under Wakefield. The Town must explain why the investigation is a personnel matter and not a formal internal affairs investigation. Second clause The Town also indicated that "[in] A Guide to the Massachusetts Public Records Law ... [t]he second clause of the privacy interest applies to requests for records that implicate privacy interests. Its application is limited to 'intimate details of a highly personal nature.' Examples of 'intimate details of a highly personal nature' include marital status, paternity, substance abuse, government assistance, family disputes and reputation. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure." The Town further indicated that "after reviewing the matter, I have concluded that the documents which you are seeking are exempt since the matter consists of intimate details of a highly personal nature: and there is no paramount public interest in the disclosure ofthese documents." 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 ofReal 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 (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

Derek D. Sullivan SPR17/1163 Page 4 September 6, 2017 disputes and reputation. I d. at 292 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. 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. The Town merely states that it has "concluded that the matter consists of 'intimate details of a highly personal nature': and there is no paramount public interest in the disclosure of these documents." However, it is unclear how the personnel matter contains intimate details of a highly personal nature. I find that the Town has not met its burden of specifically explaining the particular privacy interest at stake and how the Town has met the two-step analysis necessary to withhold the "intimate details of a highly personal nature" from public disclosure under the second clause of Exemption (c). Further, it is unclear whether there are any responsive records, or portions thereof, that do not contain "intimate details of a highly personal nature." The Town must explain whether any non-exempt, segregable portion of the responsive records can be provided. See G. L. c. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted you about this. Conclusion Accordingly, whereas the Town has indicated that it will provide Mr. Smith with a supplemental response, I will consider this administrative appeal closed with the proviso that the Town provide said response in a manner consistent with this order, the Public Records Law, and its Regulations 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. Mr. Smith may appeal the substantive nature of the response within ninety days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Smith