Meghan E. Irons v. City of Boston - Property Management Department (SPR 20171206)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 11, 2017 SPR17/1206 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Meghan Irons of The Boston Globe appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 25, 2017, Ms. Irons requested "all documents pertaining to the City's inquiry into allegations involving" a specific individual that led to a termination of employment. Ms. Irons mentioned that she prefers the documents include the individual's "testimony or interview with" an identified individual; "the outside counsel on August 16, 2017; interviews with anyone associated with the inquiry; and a formal finding from the inquiry. It should also include any and all relevant materials related to the case." The City denied her request claiming that the responsive record was withheld from disclosure under Exemption (c) ofthe Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the City's response, Ms. Irons petitioned this office and this appeal, SPR17/ 1206, 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, § 1O A( 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, § lO(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. 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

Shawn Williams, Esq. SPR17/1206 Page2 September 11, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City's August 25th response In its August 25th response, the City indicated that "[a]ll records responsive to this request are exempt from disclosure, and as such your request for records is denied." The City explained that, "[r]esponsive records consist of documentation involving the investigation into a personnel matter regarding a specifically identified City employee .... Records responsive to your request are exempt from disclosure under the first clause of Exemption (c) of the Public Records Law [which] permits withholding of 'personnel' 'files or information.' G. L. c. 4, §7 (26)(c); Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000)." Exemption (c) In the City's August 25th response, it indicated its intent to withhold the responsive records under the first clause of Exemption (c) of the Public Records Law as personnel information. 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). 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, relevant to this determination, 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). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Id. Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment

Shawn Williams, Esq. SPR17/1206 Page 3 September 11, 2017 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 306, 309. I find that the City's initial August 25th response did not meet its obligation of properly claiming an exemption and providing the requisite level of specificity to withhold the records under the Public Records Law to support an exemption claim. The City has not met its burden of specificity in withholding the records pursuant to the first clause of Exemption (c) as personnel information. Further, it is unclear how responsive records may be withheld in their entirety. The City must determine whether there are any portions of the responsive records that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-290 (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 matter. Conclusion Accordingly, whereas the City has indicated that it will provide Ms. Irons with a supplemental response, I will consider this administrative appeal closed with the proviso that the City 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. Ms. Irons 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: Meghan Irons