Allison Jarmanning v. City of Boston - Property Management Department (SPR 20171553)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 15, 2017 SPR17/1553 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Allison Jarmanning of WBUR appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Jarmanning requested a copy of information relating to a complaint against an identified individual. Previous appeal The requested record was the subject of a previous appeal. See SPRl 7/1375 Determination of the Supervisor of Records (October 11, 2017). I closed the appeal with the proviso that the City provide a response to the request in a manner consistent with the order, the Public Records Law, and its Regulations within ten business days. Following the Determination, the City provided a response dated October 25, 2017, in which it continues to deny access to the responsive record pursuant to 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 /1553, 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 of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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 A. Williams, Esq. SPRl 7/1553 Page 2 November 15, 2017 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, § 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. The City's October 2fh response In its October 25th response, the City indicates it "maintains its position that all records responsive to [the] request are 'absolutely exempt' as personnel files or information pursuant to the first clause of Exemption ( c) of the Public Records Law, and applicable case law. .. " Exemption (c) 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., 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). 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

Shawn A. Williams, Esq. SPRl 7/1553 Page 3 November 15, 2017 law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain informatidn that is considered personal in the ordinary sense of the word may be considered part of a public record ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). The City cites Wakefield in support of its position. The City claims the "investigation file" of the identified individual, which includes a copy of the original complaint and a copy of a document produced by the Massachusetts Commission Against Discrimination (MCAD) are "absolutely exempt" as personnel information because the City indicates they were useful in making employment decisions. The City also asserts that in Wakefield, the Court found that one of the benefits for non disclosure of personnel information is "the protection of the government's ability to function effectively as an employer." In light of this fact, the City claims "[i]t is clear the Wakefield court would include the withheld complaint filed with the former chief of staff as part of the 'investigation file' and find it is 'absolutely exempt' as personnel file or information." With respect to the applicability of the Worcester decision, the City contends that this decision does not apply to the present matter because the identified individual is not a police officer nor is the City's "comprehensive internal investigation" an internal affairs investigation. Applicability of Wakefield A personnel file or information "is not limited to nor does it extend to, all 'files or information' that are located physically in an individual employee's personnel file." Wakefield, 431 Mass. at 797 n. 13; see also 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); Worcester, 58 Mass. App. Ct. at 5 (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). The Wakefield Court found that a "disciplinary report" created by the employer fell within the definition of an individual's "personnel file or information" under the first clause of Exemption ( c) . Wakefield, 431 Mass. at 797. The report in Wakefield included a disciplinary decision and a seven page report written by the Superintendent following his investigation into allegations about an employee and was found to be personnel information, consequently, exempt from disclosure. Id. at 794. I find the City has not met its burden to show that the original complaint submitted by the complainant and a document produced by MCAD each constitute one of the "core categories of personnel information," such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under Exemption ( c ). See Worcester, 58 Mass. App. Ct. at 5; Wakefield, 431 Mass. at 798. Further, lfind the City has not

Shawn A. Williams, Esq. SPRl 7/1553 Page 4 November 15, 2017 met its burden to show that these records were created by the City and were based on its investigation of the matter, similar to the above-referenced Wakefield report. Applicability a/Worcester In broadly discussing the first clause of Exemption ( c ), the Worcester court categorized and described responsive records. Citing the Wakefield decision, the Worcester court concluded that records such as a copy of the complaint, a notice of claim, and letters advising of the start of an investigation "do not even arguably fall within any accepted interpretation of the term personnel files or information." Worcester. 58 Mass. App. Ct. at 6; see also Wakefield, 431 Mass. at 798-799. The Worcester court determined that because none of these records constituted a disciplinary report, disciplinary documentation, or promotion, demotion, or termination information, these records were not exempt from disclosure as they "essentially constitute notice." Id. at 6-7. In rendering this conclusion that a complaint, a notice of claim, and letters advising of the start of an investigation do not fall under the definition of personnel files or information, the Worcester court relied on the reasoning in Wakefield, which did not relate to an internal affairs investigation of a police officer. Worcester, 58 Mass. App. Ct. at 6; see Wakefield, 431 Mass. at 798-799. As a result, this finding by the Worcester court applies to these records even if they are not related to an internal affairs investigation of a police officer. Therefore, I find it is unclear how the records at issue in the present appeal, which are similar to those described in Worcester as being outside of the personnel clause of Exemption (c), may be withheld in this way. For the reasons described above, I find the City has not met its burden to demonstrate how the requested records are exempt from disclosure under Exemption ( c) of the Public Records Law. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the City is ordered to 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, ·~~ Rebecca S. Murray Supervisor of Records cc: Allison Ja rmanning