Mike Beaudet v. Human Resources Division (SPR 20180080)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division RebeccaS. Murray Supervisor ofRecords February 1,2018 SPR181080 Michele Heffernan, Esq. Deputy General CounsellRAO Human Resources Division One Ashburton Place Boston, MA 02108 Dear Attorney Heffernan: I have received the petition of Mike Beaudet of WCVB-TV appealing the response of the Human Resources Division (Division) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, onNovember 27,2017, Mr. Beaudet requested an electronic copy of recordsldatabases reflecting all terminations from January 1,2016 to the present, including the reason for said termination. In his previous petition for an appeal, Mr. Beaudet informed the Supervisor of Records (Supervisor) that he is not requesting the names of those individuals who were terminated. Previous appeal The responsive record was the subject of a previous appeal. SPR1711739 Determination of the Supervisor (January 3,2018). In my January 3rdd etermination, I ordered the Division to provide Mr. Beaudet with the requested information. On January 17,2018, the Division provided Mr. Beaudet with a 124-page electronic list that included the names of the employers (agency), the termination action descriptions and some of the descriptions of the reasons for termination. Mr. Beaudet petitioned the Supervisor after receiving the record, stating, "the Division is knowingly redacting information about why people were terminated." As a result, the current appeal was opened. Appeals to the Supervisor It appears that Mr. Beaudet did not provide a copy of his petition for an appeal to the Division; therefore, a Public Records Division staff member provided a copy of the appeal file to the Division. Mr. Beaudet is advised that in petitioning the Supervisor, "the requester must provide a copy of such petition to the records access officer associated with such petition." 950 C.M.R. 32.08(1)(h). One Ashburton Place, Room 1719, Boston, Massach.u setts 02108 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us1pre pre@sec.state.ma.us

Michele Heffernan, Esq. Page 2 February 1,2018 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, 3 10A(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, 5 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, 3 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlev, 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. The Division's January 17"" response In your January 17" response that accompanied the record sent to Mr. Beaudet, you exolained that the Division does not maintain a database or record with the soecific facts underlying a termination. A review by this office of the responsive spreadsheet generated from the database shows that in the column heading entitled, "Termination Reason Description," the - reasons listed, for example, are, "resignation; contract expired; retirement; discharge; elimination of position;" and so forth. In a January 3otht elephone discussion with you, an attorney in the Public Records Division asked whether the Division has other information relative to the underlying reason for each of the terminations. You explained that the Division has no other records responsive to Mr. Beaudet's request; however the underlying reasons and facts relative to the terminations would be held by the employers themselves. Mr. Beaudet also informed this office in his petition that the Division redacted the general reason for terminationsiseparations from employment from certain of the agencies listed in the spreadsheet. In both your response and in the telephone discussion with this office, the Division contends that the redactions were necessary because the identity of the terminated employees could be discovered even without the names listed, as the particular agency they were formerly employed with has a limited number of employees. The Division also contends, "even with the names withheld, disclosing records that employees were involuntarily separated from employment due to disciplinary action is considered highly personal information since it could negatively impact future opportunities for those individuals to secure employment by another employer." The Division cites Exemption (c) to withhold the redacted information. Exemption (c) Exemption (c) applies to:

Michele Heffernan, Esq. Page 3 February 1,2018 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 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). First clause The first clause, which the Division states is relevant to this appeal, creates a categorical exemption for personnel information that relates to an identifiable individual and is of a Id. "personal nature." 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). However, the Division has not demonstrated how, with the limited amount of information the Division provided, Mr. Beaudet would be able to discover the identity of the unnamed persons who were terminated from certain of the agencies listed on the spreadsheet. The Division merely states in its response that the limited number of employees terminated from employment by the agency could be easily discovered. I find that the Division has not provided the specificity to support its decision to withhold the general reason of termination for unnamed persons in certain of the agencies listed on the spreadsheet under the first clause of Exemption (c). Second clause of (c) - pvivacy The Division has also claimed that the second clause of Exemption (c) allows the Division to withhold the general reason for the terminations at certain of the agencies listed on the spreadsheet as private information. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property m, 380 Mass. 623,625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal

Michele Heffernan, Esq. Page 4 February 1,2018 sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Apric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family Id. disputes and reputation. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) polding that a motor vehicle licensee has aprivacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of m, privacy, the private interest in preventing disclosure must yield. 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. The Division has stated in its January 17" response that the general reason the separation information has been redacted from certain agencies is that the limited number of employees terminated from employment by the agency could result in identification of individual separated employees. In addition, the Division contends that disclosing information with facts that could serve as clues to the identity of the terminated employees would not serve to protect their privacy. As support, the Division cites Logan v. Commissioner of DIA, 68 Mass. App. Ct. 533 (2007). In Logan, the Appeals Court affirmed the Superior Court's judgment allowing the Department of Industrial Accidents to withhold the reports prepared by an impartial medical examiner, in their entirety, because the record contained medical information covered by Exemption (c), and even with redactions the reports contained "personal information which Id. could indirectly lead to the identification of the person to whom the report relates." at 535. I find that the Division has not met its burden of specifically supporting its claim that listing the general reason for the termination of certain unnamed persons from certain agencies will lead to a disclosure of the unnamed person's identity, thus triggering a violation of the individuals' privacy. See Globe Newspaper Co., Inc. v. Exec. Office of Admin. and Finance, Suffolk Superior Court Civil Action No. 1 1-011 84-A at 34-35 (June 14, 2013) (holding governmental entities are not "permitted under the principles of governing law to redact ... the names of public employees who receive public funds in settlements of claims, or other information on the basis simply that it might facilitate identification of those individuals."). Burden of specificity Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific

Michele Heffernan, Esq. Page 5 February 1,2018 exemption or exemptions upon which the withholding is based.. ."); see also Globe Newspaper m, Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); 419 Mass. at 51 1. The Division did not meet its burden of demonstrating how the responsive information is exempt from disclosure under Exemption (c). Reinstein v. Police Comrn'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Order Accordingly, the Division is ordered to provide Mr. Beaudet with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Sincerely, Rebecca S. Murray J...( Supervisor of Records cc: Mike Beaudet