Ryan Kath v. Massachusetts Office of the Comptroller (SPR 20171591)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 27, 2017 SPR17/1591 Jenny Hedderman, Esq. Deputy Comptroller and General Counsel Office of the State Comptroller One Ashburton Place, 9th Floor Boston, MA 02108 Dear Attorney Hedderman: I have received the petition of Ryan Kath of WBZ-TV appealing the response of the Office of the Comptroller (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kath requested "[a] list of all State of Massachusetts employees who have been on paid administrative leave (or suspended with pay) from November 1, 2014 thru present." Mr. Kath also notes "[t]he records should contain, but not be limited to, each employee's name, title, department, salary, date placed on leave, date when the leave ended, and amount of compensation while on leave. Please do not include employees who were on maternity leave or other types of excused medical-related leave." The Office responded on November 9, 2017 by providing an Excel spreadsheet containing certain categories of information, but withheld other categories under Exemptions ( a), (b), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (b), (c), (f). 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. 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 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

Jenny Hedderman, Esq. SPR17/1591 Page 2 November 27, 2017 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Office's response In its November 9th response, the Office provided an Excel spreadsheet with the agency name, type of leave granted, and the total amounts paid for each type of leave granted by the agency. The Office did not provide "individual employee name, title, department, salary, date placed on leave, date when the leave ended, amount of compensation while on leave, because the Comptroller is unable to ascertain, with reasonable certainty, that these records are public records subject to disclosure." The Office cites Exemptions (a), (b), (c), and (f) in support of withholding this information. The Office asserts that "[p]ursuant to the Comptroller's legislative authority under the Public Records Law c. 66, § 20, other individual employee data is exempted from disclosure by the Comptroller under G.L. c. 4, §7 Twenty-sixth (a), (b), (c), and (f) because the Comptroller is not a holder of the records necessary to determine that the records requested are public records, and the requester must contact the specific employing Departments with a public records request for each Department to review their records and perform independent records evaluations and responses." In a further response dated November 15, 2017, the Office notes that it is "not the employer or authority for any employees other than its own employees, therefore, CTR cannot provide data on employees of another department unless statutorily or through case law determined to be a public record." However, it is unclear how the remaining responsive categories of records can be withheld, especially in light of Brogan v. Sch. Comm. of Westport, which found that "the names of the school committee's employees, and the dates and generic classifications, e.g., 'sick day,' 'personal day,' etc., of their absences" are not '"intimate details' of a 'highly personal' nature,' the 'kind of private facts that the Legislature intended to ezcempt from mandatory disclosure.'" Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987). Further, in light of the presumption that government records are public records, it is unclear how G. L. c. 66, § 20 operates to allow the Office to withhold these categories of records. I understand a Public Records Division staff attorney contacted you about this appeal and you indicated the Office will provide a supplemental response regarding this matter. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Office provides Mr. Kath 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.

Jenny Hedderman, Esq. SPRl 7/1591 Page 3 November 27, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Ryan Kath