Caroline Ahdab v. West Newbury, Town of - Town Clerk (SPR 20180126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 9,2018 SPR1.8/126 Michael McCarron Town of West Newbury - Town Clerk 3 8 1 Main Street West Newbury, MA 01985 Dear Mr, McCarron: I have received the petition of Caroline Ahdab appealing the response of the Town of West Newbury (Town) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on January 10, 2018, Ms. Ahdab requested copies of "Town Manager application submissions, application date and the references provided in their applications." In a response dated January 10,2018, the Town claimed Exemptions (a) and (c) of the Public Records Law to withhold responsive records. G. L. c. 4, § 7(26)(a), (c). Ms. Ahdab later modified her request and indicated that she is only requesting the "First and Last name of the Applicants, the date, the applicant city and state, and their references." The Town provided responsive records on January 22,20 18. Contending that she has not been provided with all responsive records, Ms. Ahdab petitioned this office and this appeal, SPR181126, 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, 5 1O A(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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (1995) (custodian has the burden of establishng 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. 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

Michael McCarron Page 2 February 9,2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 10@)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town's January lothr esponse In its January 10,2018 response, the Town indicated that it was unable to provide Ms. Ahdab "with the requested response since they constitute exemptions to the [Plublic [Rlecords [Llaw in accordance with the provisions of Massachusetts General Laws chapter 4 Section 7(26) (a) and (c)." The Town indicated that G. L. c. 3Oa, 5 21(a)(8) "permits a public body to consider and interview applicants in executive sessions, which was done in this matter. It would thwart the purpose of the executive session if that information was discoverable by means of a public record request." The Town indicated that it would, however, provide the requested information relating to the final candidates for the position. The Town provided responsive records on January 22,2018. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute 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 Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottawa? Newspapers. Inc, v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Michael McCarron Page 3 February 9,2018 Exemption (c) 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 First clause of Exemption (c) The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,434 (1983). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westvort, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). Personnel information that relates to an identifiable individual is also exemvt from disclosure. Globe Newsvaper Co., 388 Mass. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an e~ployee'-mayb e withheld from disclosure. Worcester ~elegr~a&m G azette 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., 43 1 Mass. 792,798 (2000). Second clause of Exemption (c) 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 sensibilities; (2) whether the materials sought contain intimate details of a highly personal

Michael McCarron Page 4 February 9,201 8 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 Agric. 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 disputes and reputation. @. at 292 11.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy 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. Additional responsive records The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, 5 lO(a)(ii). Although the Town provided responsive records, Ms. Ahdab claims the records were not sufficiently responsive to her request. She claims that the requested information regarding references of each applicant was not provided. The Town must clarify whether or not it possesses additional responsive records and provide such response in compliance with the Public Records Law and its Regulations. If the Town maintains that any portion of the responsive records are exempt from disclosure it must provide a written explanation, with specificity, how a particular exemption applies to each record. 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. G. L. c. 66, 5 10(d)(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 exemption or exemptions upon which the withholding is based.. ."). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Town is hereby ordered to provide Ms. Ahdab responsive records, 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. Ms. Ahdab may appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1). The Town may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Michael McCarron Page 5 February 9: 20 18 Sincerely, a Rebecca S. Murray Supervisor of Records cc: Caroline Ahdab