Allison Jarmanning v. City of Boston - Property Management Department (SPR 20171764)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 11, 2018 SPR17/l764 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 Allison J armanning 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. Previous appeals This request was the subject of previous appeals. See SPRl 7 /13 75 Determination of the Supervisor of Records (October 11, 20 17); SPRl 7/1553 Determination of the Supervisor of Records (November 15, 2017). I closed the November 15th Determination by ordering the City to provide Ms. Jarmanning with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the Determination, the City provided a response dated December 14, 2017 in which it continues to deny access to responsive records 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 /1764, 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 7/1764 Page2 January 11, 2018 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 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 December 14th response In its December 14th response, the City referenced a recent Supervisor of Records Determination permitting withholding of completed 2015 survey results in a Superintendent's personnel file and indicated that the Wakefield decision did not focus on the author of the record but on "whether the 'report was sufficiently 'personal' to fall within [exemption (c)]. Wakefield Teachers Ass'n v. School Committee of Wakefield, 47 Mass.App.Ct 704, 707 (1999).'" The City then indicates it acted properly in withholding responsive records in its entirety pursuant to Exemption (c) because "the records were 'sufficiently 'personal' and were 'useful in making employment decisions regarding an employee."' The City further indicates that, because the complainant in Worcester was a citizen, whose complaint led to a formal internal affairs investigation, it is distinct from the present matter where in this case, "a City of Boston employee filed a complaint with the employee's employer regarding an allegation against a supervisor." The City continues to reiterate that the Worcester decision "relates to an internal affairs investigation and not an ordinary disciplinary matter." The City also indicates that because the Worcester court acknowledged that "an internal affairs investigation has no power to exert discipline on an employee," it is distinct from the present matter in that "the City 'was both the investigating and disciplining authority."' Therefore, "[t]he responsive records are 'absolutely exempt' as 'personnel files [and] information' pursuant to the first clause of exemption (c) of the public Records Law." Exemption (c) The City indicated that it withheld responsive records pursuant to Exemption ( c) of the Public Records Law. 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

Shawn A. Williams, Esq. SPRl 7/1764 Page 3 January 11, 2018 G. L. C. 4, §7 (26)(c ). First clause ofE xemption (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 of records 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). Order Despite the City's claims in its December 14, 2017 response, I find the City has not established that the original complaint submitted by the complainant and a document produced by MCAD each constitute one of the "core categories of personnel information," which may properly be withheld from disclosure under Exemption (c). See SPRl 7/1553 Determination of the Supervisor of Records (November 15, 2017). Accordingly, whereas the City has not satisfied its statutory and regulatory obligation under the Public Records Law, the City is hereby ordered to provide Ms. Jarmanning with the responsive records in a manner consistent with the Public Records Law and its Regulations within 10 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.

Shawn A. Williams, Esq. SPRl 7/1764 Page 4 January 11, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Allison Jarmanning