Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20180180)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 23, 20 18 SPRl81180 Susan G. Hazen Town of Rowley - Town Clerk 139 Main Street P. 0. Box 351 Rowley, MA 01969 Dear Ms. Hazen: I have received the petition of Timothy Toomey appealing the response of the Town of Rowley Town Clerlc (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 19,2018, Mr. Toomey requested "[alny and all information regarding unemployment records and benefits claims including but not limited to the supervisory positions for the town departments or water department for the period of October 20 17 to present." The Town provided a response on February 1,201 8, which included some responsive records but denied access to others pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, 5 7(26)(c). Unsatisfied with the Town's response, Mr. Toomey petitioned this office and this appeal, SPR18/180, 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 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. One Ashburton Place, Room 1719 , Boston, Massachusetts 0210 8 (6 17) 727-2832. Fax: (61 7) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Susan G. Hazen Page 2 February 23,20 18 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(b)(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 February lSrte sponse In its February 1,2018 response, the Town indicated that although it does possess documents responsive to Mr. Toomey's request, certain portions of the records are exempt pursuant to Exemption (c) of the Public Records Law. Exemption (c) The Town 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 First clause of Exemption (c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-34 (1983). The first clause creates a categorical exemption for personnel and medical information that relates to Id. an identifiable individual and is of a "personal nature." at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt fiom disclosure. Brogan v. School Comm. of Westport, 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 exempt from disclosure. Globe Newspaper Co., 388 Mass. 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., 43 1 Mass. 792, 798

Susan G. Hazen Page 3 February 23,20 18 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 Cornrn'r of Real Property Dep't, 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 nature; and (3) whether the same information is available from other sources. &g People for the Ethical Treatment of Animals (PETA) v. Dep't of Aaric. 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. 41 5,427 (1 988) (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 privacy, the private interest in preventing disclosure must yield. PETA, 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. Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, 9 1O (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 . . ."); see also Globe Newspaper Co. v. Police Comm'r, 41 9 Mass. 852, 857 (1 995); Flatley, 41 9 Mass. at 5 11 . The Town did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, 5 lO(b)(iv); 950 CMR 32.06(3)(~)(4)H. ere, the Town withheld some responsive records without identifying the records. Therefore, the Town must identify the

Susan G. Hazen Page 4 February 23,20 18 type of record(s) it has in its possession that it withheld. Further, the Town's February lStr esponse did not contain the specificity required in a denial of access to public records. Instead, the Town's response merely cites Exemption (c) without any further explanation as to the exemption's applicability to the requested records. Based on its response, it is unclear whether the Town is claiming an exemption under the first clause and/or second clause of Exemption (c). The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Consequently, I find that the Town has not satisfied its burden in responding to this records request. As stated above, the custodian bears the burden to prove with specificity any exemption that applies. G. L. c. 66, 3 lO(b)(iv). Additionally, a custodian of a record shall not only cite an exemption but must explain with specificity why the exemption applies to a withheld or redacted portion of the responsive record in order to comply with the Public Records Law and its Regulations. G. L. c. 66, 5 10(a). 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. G. L. c. 66, 5 lO(a)(ii). Although the Town provided some responsive records, Mr. Toomey claims the records were not sufficiently responsive to his request. He claims that written correspondence (emails, memo, etc.) supplied to an identified individual, material relating to inter-department correspondences between departments of the Town, as well as documents regarding two executive sessions were not provided to him. 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. I understand a Public Records Division staff attorney contacted your office about this appeal. Order Accordingly, the Town is ordered to provide Mr. Toomey 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. The Town may file a request for reconsideration within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy Toomey