Alex Ramos v. Executive Office of Public Safety and Security - Department of Correction (SPR 20171373)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 6, 2017 SPR17/1373 Jeanine Roth Department of Correction MCI-Concord 965 Elm Street - PO Box 9106 Concord, MA 01742 Dear Ms. Roth: I have received the petition of Alex Ramos appealing the response of Department of Corrections - MCI Concord (DOC) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Ramos requested a "[r]edacted personnel file" of an identified DOC employee "relative to [the employee's] time in the DOC with reference to any complaints or reprimands during his career." Jeanine Roth, records access officer, denied his request, claiming the responsive record exempt from disclosure pursuant to 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, § 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, § 10(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 portiqn 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

Jeanine Roth SPR17/1373 Page 2 October 6, 2017 Purpose of request; identity ofrequester Please note that the reason for which a requestor seeks access to or a copy of a public · record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Ramos's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Ramos's may wish to consider another means of seeking to obtain any existing responsive records. Exemption (c) In the DOC's September 21st response to Mr. Ramos's request, it indicates the requested record is "denied because it is exempt from disclosure under the Public Records law, specifically Exemption (c) -The Privacy Exemption. The requested records are data within a personnel file of a specific individual and are therefore exempt." 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). Ft clause Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston RetirementBd., 388 Mass. 427,432-33 (1983). 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. However, the Massachusetts Legislature did not explicitly define "personnel [files] or information." G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is "neither rigid nor precise and that the determination is case-specific." Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass.

Jeanine Roth SPR17/1373 Page 3 October 6, 2017 App. Ct. 1, 5 (2003). The classification by custodians of records or materials as personnel information is not conclusive. Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents' label, is crucial to the analysis. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 386 (2000). 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," which includes, but is not limited to, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee." Wakefield, 431 Mass. at 798. 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 Globe Newspaper Co., 388 Mass. at 435 ("Not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection"); Brogan v. School Comm. ofWestport, 401 Mass. 306, 309 (1987). 2nd 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 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 (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 ofhis social security number).

Jeanine Roth SPR17/1373 Page 4 October 6, 2017 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. Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The DOC's response does not contain the specificity required in a denial of access to public records. Instead, the DOC's response merely cites Exemption (c) without explaining what responsive records it possesses, identifying which clause of Exemption (c) applies or any further explanation as to the exemption or its clauses' applicability to the requested records. The DOC is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Additionally, it is unclear how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). As a result, I find that the DOC has not satisfied its burden in responding to this records request. The DOC is advised that a records custodian is required to not 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. Order Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the DOC intends to provide Mr. Ramos with a supplemental response to his request. Accordingly, I will consider this administrative appeal closed with the proviso that the DOC provides 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. Ramos may appeal the substantive nature ofthe DOC's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, -~~- Rebecca S. Murray Supervisor of Records cc: Alex Ramos