Kelsey Bode v. Andover, Town of - Town Clerk (SPR 20171363)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 3, 2017 SPR17/1363 Lawrence Murphy Town Clerk/ Records Access Officer Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Mr. Murphy: I have received the petition of Kelsey Bode 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, on September 14, 2017, Ms. Bode requested "to inspect or obtain your emails to and from the Board of Selectmen during the month of August regarding [a specific] Director of Youth Services at the Cormier Youth Center." The Town provided a response on September 20, 2017, in which it denied access to the records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Town's response, Ms. Bode petitioned this office and this appeal, SPR17/1363, 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, § 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 ofthe 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

Lawrence Murphy SPR17/1363 Page 2 October 3, 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 Town's September 2rl" response In the Town's September 20th response, the Town indicated that "there is one such e-mail from [an identified individual] to the Selectmen during this period and no e-mails to [the identified individual] from any member of the Board of Selectmen. The e-mail in question is being withheld because it is exempt from disclosure under M.G. L. Chapter 4, § 7(26) [E]xemption (c), both first and second clause. The first clause of [E]xemption (c) exempts from public disclosure personnel files or information. This e-mail in question clearly falls within this category .... In addition, under the second clause of [E]xemption (c) disclosure would constitute an unwarranted invasion of personal privacy." Exemption (c) In the Town's September 20th response, it indicated its intent to withhold the responsive record under the first and second clauses of Exemption (c) of the Public Records Law. 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). First clause 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). 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.

. Lawrence Murphy SPR17/1363 Page 3 October 3, 2017 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 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. Second Clause 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. 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. 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's September 201 h response did not provide the requisite level of specificity to withhold the records under the Public Records Law. Instead, the Town merely cites Exemption (c) without further explanation as to the Exemption's applicability to the requested records. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. The Town is advised that a records custodian is required to not

Lawrence Murphy SPR17/1363 Page 4 October 3, 2017 only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Further, it is unclear how the responsive record may be withheld in its entirety. The Town must determine whether there are any portions of the responsive record that do not fall within an exemption that would therefore be subject to mandatory disclosure. Under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § IO(a); Reinstein v. Police Comm'r ofBoston, 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 your office about this appeal. Conclusion Accordingly, whereas the Town has indicated that it will provide 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. Ms. Bode may appeal the substantive nature ofthe Town's response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Kelsey Bode