Todd Wallack v. Massachusetts Office of the Comptroller (SPR 20171735)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 5, 2018 SPR17/1735 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 Todd Wallack of the Boston Globe 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. Wallack requested "a list of all Commonwealth employees who have been placed on paid administrative leave (or suspended with pay) from January 1, 2014 through the present. Please include the employee's name, department, title, salary, date leave began, and date leave ended (if applicable). Please exclude any cases involving parental, educational, or medical leave." The Office responded on December· 19, 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); G. L. c. 66, § 20. Tlte 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. SPRl 7/1735 Page 2 January 5, 2018 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 As discussed above, in its December 19th response the Office provided an Excel spreadsheet with the Department, the type of leave granted, and the total amounts paid for each type of leave granted by the Department. The Office continues by stating "[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 M.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." G.L. c. 66, § 20 provides the following: For requests of payroll, financial and other data residing in the centralized state accounting and payroll systems, or associated data warehouses, the comptroller shall make available guidelines on how agencies using these systems may access and disclose public records to ensure that data that is exempted or prohibited from disclosure is not wrongfully disclosed and the security of the system is maintained. The above statutory language appears to relate to the Office making available guidelines on using certain systems. Despite its thorough explanation of the purpose and important function related to the security of data, the Office has not established how G. L. c. 66, § 20 allows it to assert exemptions to the Public Records Law to withhold records. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979) (a governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted); See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Exemptions In his appeal petition, Mr. Wallack notes he is "not asking the Comptroller's office for details of why each employee was placed on administrative leave. Instead, I intend to seek that information directly from the relevant departments (if available)." Mr. Wallack also references Globe Newspaper Company, Inc. v. Executive Office of Administration and Finance, Suffolk Superior Court Civil Action No. 11-01184-A (June 14, 2013) in his appeal. It is important to note that the Globe decision states governmental entities are not permitted "under the principles of governing law to redact ... the names of public employees

Jenny Hedderman, Esq. SPRl 7/1735 Page 3 January 5, 2018 who receive public funds in settlements of claims, or other information on the basis simply that it might facilitate identification of those individuals." See id. at 34-35. The Globe decision also found that "records of payments made from the Office of the Comptroller's account for settlements and judgments since January 1, 2005, redacted, where applicable, only of the employee's home address, telephone number, and 'personnel information' as described in this decision, are public records subject to mandatory disclosure under G. L. c. 66, § 10." Although the records in the Globe decision are related to funds for settlements and judgments, I find a similar analysis is appropriate in the current appeal related to funds paid to public employees on administrative leave. With respect to Exemption (c), Brogan v. Sch. Comm. of Westport, 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 exempt from mandatory disclosure."' Brogan v. Sch. Comm. of Westport, 401 Mass. 306,308 (1987); see also Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. 1, 6-7 (2003) (finding that records that "essentially constitute notice" do not fall under the personnel clause of Exemption (c)). Whereas Mr. Wallack does not seek details of why each employee was placed on administrative leave from the Office, and the Office has explained it not a holder of such underlying records, I find the Office has not established how the remaining categories of responsive records are "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' that may be withheld from disclosure under the personnel clause of Exemption (c). See Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798-99 (2000). Further, it is unclear how the remaining responsive categories of records are related solely to internal personnel rules and practices of the government unit or how they are medical files or information. It is also uncertain how disclosure would constitute an unwarranted invasion of personal privacy, particularly because Mr. Wallack is not seeking cases involving parental, educational, or medical leave. Nor is it clear how disclosure would pose a security risk, or probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(a), (b), (c), (f). The Office asserts that because it "cannot ascertain whether or not the records sought are public records, and whether public records or statutory exemptions may apply, this Office cannot release this information pursuant to M.G.L. c. 66, § 20." However, in light of the presumption that government records are public records, I find the Office has not met its burden to show that an exemption to the Public Records Law applies to withhold the remaining categories of responsive records that are within the Office's possession. I understand a Public Records Division staff attorney contacted you about this appeal.

Jenny Hedderman, Esq. SPRl 7/1735 Page4 January 5, 2018 Conclusion Accordingly, the Office is ordered to produce responsive records 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. The Office may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack