Allison Jarmanning v. City of Boston - Property Management Department (SPR 20171375)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division · Rebecca S. Murray Supervisor ofR ecords October 11, 2017 SPR17/1375 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Ally Jarmanning 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 22, 2017, Ms. Jarmanning requested a copy of information relating to a complaint against an identified individual. The City provided a response on September 26, 2017, in which it denied access to the responsive records under Exemption ( c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the City's response, Ms. Jarmanning petitioned this Office and this appeal, SPRl 7/1375, was opened as a result. Procedure for appeals A review of the petition Ms. Jarmanning filed with the Supervisor of Records (Supervisor) reveals that Ms. Jarmanning did not provide a copy of the petition to the City's records access officer. Ms. Jarmanning is reminded that "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). 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, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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. SPRl 7/1375 Page2 October 11, 2017 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. The City's September 26th response In the City's September 26th response, it indicated that "[t]he City possesses records responsive to your request in the form of: a copy of complaint filed with the Massachusetts Commission Against Discrimination; internal correspondence regarding the complaint; and an email from the complainant" to an identified individual. The City indicated that "the responsive records consist solely of personnel files and information and are absolutely exempt from disclosure pursuant to the first clause of Exemption (c)." The City cited the Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792 (2000) case, and asserted that, "[t]he first clause of Exemption (c) also provides protection to the employer to permit withholding of records useful in making an employment decision regarding an employee. The Wakefield Court found that the 'exemption from disclosure of personnel files and information has, among other benefits, the protection of the government's ability to function effectively as an employer. ..." The City explained that "[t]he records sought in your request consist of information useful in making an employment decision regarding an employee. The records contain disciplinary information regarding that employee, including allegations made by a complainant, discussions regarding the complaint, and a copy of the formal complaint itself. ... These are the types of records the Wakefield Court considered in making its determination that such records are entirely exempt from disclosure." , With respect to whether redacted records may be provided, the City indicated that because the Wakefield Court made no order requiring redaction and the records were entirely and absolutely exempt, "the City is not obligated to provide a redacted copy of records." Exemption (c) The City's September 26th response stated that the records, which include disciplinary information regarding the employee, the allegations made by a complainant, discussions regarding the complaint; and a copy of the formal complaint, have been withheld in their entirety under the first clause of Exemption ( c) of the Public Records Law.

Shawn Williams, Esq. SPRI 7/1375 Page 3 October 11, 2017 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 appeal, creates a categorical exemption for personnel information that relates to an identifiable individual and is of a·"personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). 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). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories ofrecords 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). 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 v. School Comm. of Westport, 401 Mass. 306,309 (1987). Courts have held that the term "personnel information" is neither rigid nor exact, and that determination should be made on a case by case basis. Wakefield Teachers Ass'n, 431 Mass. at 798. The City is advised that the term "personnel file or information" in Exemption (c) derives its meaning from the nature or character of the document, not from its label or its repository. Worcester Telegram & Gazette Corp. 58 Mass. App. Ct. at 5. Therefore, a custodian's designation of materials as personnel file or information will not be dispositive to that point. Id. at 5~6. Accordingly, it is unclear how certain information in the City's possession, such as a copy of the complaint to MCAD and an email sent by the complainant to the then Chief of Staff, each constitutes disciplinary documentation within the meaning of Wakefield. See Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 6 (finding that exchanges between the city and the complainant, a copy of the complaint, a notice of a claim, and letters advising of the start of an investigation did not constitute personnel files or information).

Shawn Williams, Esq. SPR17/1375 Page4 October 11, 2017 I understand a Public Records Division staff attorney contacted your office about this appeal and the City has indicated that it would provide a supplemental response. Conclusion Accordingly, I will consider this administrative appeal closed with the proviso that the City provide Ms. Jarmanning with a response to the request, provided 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. Sincerely, M w A ~ Rebecca S. Murray Supervisor of Records cc: Ally Jarmanning