Nicole M. Avitabile, Esq. v. Lexington, Town of (SPR 20180246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 5, 2018 SPRlS/246 Joshua R. Coleman, Esq. Legal Counsel-Town of Lexington Collins, Loughran & Peloquin, P.C. 220 Norwood Park South, Suite ID Norwood, MA 02062 Dear Attorney Coleman: I have received the petition ofNicole Avitabile, Esq. of Rawson Merigan & Litner, LLP appealing the response of the Town of Lexington (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Avitabile requested: All public records, provided in electronic format, from 2016 to the present that contain the name, "Bryan Webb," in his capacity as an employee of the Town or its agents; and also in his capacity as a licensed EMT Paramedic including: 1. Reports; 2. Records; 3. Investigatory materials; 4. Videos; 5. Photographs; 6. Complaints; 7. Employee records; 8. Agreements; 9. Contracts; 10. License information; 11. Disciplinary information; and 12. Any other documents created or stored on the Massachusetts Ambulance Trip Information System. The Town's February 6, 2018 initial response Accompanying the Town's February 6, 2018 response, Attorney Avitabile was provided with the investigatory records regarding Bryan Webb, which were previously provided to Mr. 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

Joshua R. Coleman, Esq. SPR18/246 Page 2 March 5, 2018 Webb's Union Counsel. As Legal Counsel to the Town, you informed Attorney Avitabile that you are not aware of any videos or photographs in response to her request. Unsatisfied with the Town's response, Attorney Avitabile petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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, § 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, § 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, § 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 exemption or exemptions upon which the withholding is based ... "); 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). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Attorney Avitabile's petition to the Supervisor and the Town's March F1 response In her February 22nct retition to the Supervisor, Attorney Avitabile noted several issues with the Town's February 6t response. First, she contends that the Town is withholding records of the Department of Public Health related to the pending complaint investigation. After this appeal was opened, the Town provided a March 1st response explaining to Attorney Avitabile that the records regarding the Ambulance Trip Record Information System are records in the possession, custody and control of the state Department of Public Health. In her March 2nd email, Ms. Avitabile informed this office that she is already receiving the documents from the Department; therefore, she indicates that the request for the records from the Ambulance Trip Record Information System has been satisfied. Secondly, Attorney Avitabile appeals the Town's February response to withhold any records related to disciplinary information pursuant to Exemption (c). The Town's February response merely states that the request for any "disciplinary information" concerning Mr. Webb is subject to Exemption (c) of the Public Records Law.

Joshua R. Coleman, Esq. SPR18/246 Page 3 March 5, 2018 Exemption (c) Exemption (c) applies to: 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 G. L. c. 4, §7 (26)(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. ChiefofPolice ofWorcester, 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). After this appeal was opened, the Town asserted in its March 1st response that any records that specifically identified the notice of disciplinary charges were being withheld under Exemption (c). You state in your March 1st response that the Town provided a copy of Mr. Webb's salary history in response to Attorney Avitabile's request for "employee" records, and that you are not aware of any responsive videos or photographs. Further, you state in your March 1st response, that, "[t]o the extent the requester is seeking a copy of the employee's personnel file, it is well established that this is subject to Exemption (c)." The Town cites the Wakefield case concerning any disciplinary information; however, the Town's responses did not met the Town's burden to identify what records it has in its custody that are responsive to Attorney Avitabile's request for all records concerning Mr. Webb. Moreover, the Town has not met its burden in specifically claiming Exemption (c) to withhold each responsive record. The Town's February and March responses do not explain how the records in its custody constitute the core categories of personnel information that are "useful in making employment decisions regarding an employee" and how these records may be withheld, in their entirety, from public disclosure. See Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 5. Second clause of (c) -privacy 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.

Joshua R. Coleman, Esq. SPR18/246 Page4 March 5, 2018 Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r ofReal 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. 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. I d. at 292 n.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 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 in a law-abiding and efficient manner. Id. at 292. The Town's February 61 h response cited both clauses of Exemption (c) to withhold responsive records that concern or mention Mr. Webb. It is unclear whether the Town is still claiming the second clause of Exemption (c) to withhold either content from records or records in their entirety. Given that the Town has not demonstrated whether disclosure would result in personal embarrassment to an individual of normal sensibilities; the materials sought contain intimate details of a highly personal nature; or whether the same information is available from other sources, I find that the Town has not met its burden of specifically claiming the second clause of Exemption (c) to withhold records or content within the responsive records. In a March 2nd email to the Supervisor, Attorney Avitabile states that the Town did not provide her with a response that explains what information within the content of the settlement agreement was withheld, and that the Town did not specifically claim an exemption or exemptions to support the redaction of the settlement agreement. The Town must identify any records, or portions of records, that the Town intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based. See G. L. c. 66, § 1O (b )(iv). Attorney Avitabile expresses concern in her February 22nd email to the Supervisor that the Town has not provided her with all the records responsive to her request. In your March 1st email to a Public Records Division attorney, you state that the Town has produced all the

Joshua R. Coleman, Esq. SPR18/246 Page 5 March 5, 2018 resfonsive records contained within its investigation. However, Attorney Avitabile's January 26t request stated, "[a]ll records from 2016 that contain the name 'Bryan Webb' in his capacity as an employee of the Town, and also in his capacity as a licensed EMT paramedic." Therefore, the Town must identify any records, categories of records or portions of records that the Town has in its possession that it intends to withhold, and provide the specific reasons for such withholding. See G. L. c. 66, § 1O (b )(iv). Fees Finally, in her March 2nd email, Attorney Avitabile questioned the fee she is being charged for redaction of the roll call logs of the Fire Department. It is my understanding that the Town informed Attorney Avitabile that the lowest paid fire prevention clerk in the Fire Department, whose hourly rate is $26.57, will be used to assess approximately three (3) hours of time to redact the records, for a total of $79.71. Subsequently, the hourly rate was reduced to $25.00. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10 ( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. G. L. c. 66, § 1 0( d)( iii). Under the Public Records Law and its Regulations, the hourly rate should be based on the lowest paid employee who could perform these tasks. It is my understanding that the Town estimates that it may take a maximum of three (3) hours to segregate and redact content from the roll call logs; however, it is unclear whether the Town has specifically claimed an exemption to redact the records and withhold exempt content. Please note, a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 CMR 32.06(4). With the limited information offered by the Town, it is unclear why the Town requires 3 hours to segregate and redact, and whether these redactions are required by law. Specificity in responding to public records requests I find that the Town did not meet its burden in responding to the requests and in claiming exemptions with specificity to withhold content within records and to withhold records in their entirety. The Town is advised that pursuant to the Public Records Law, a custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or

Joshua R. Coleman, Esq. SPR18/246 Page 6 March 5, 2018 redacted portion of the responsive record. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is my understanding that a Public Records Division attorney contacted you regarding . this appeal. Order Accordingly, the Town is ordered to provide Attorney Avitabile with a revised fee estimate, in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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 Supervisor of Records cc: Nicole M. Avitabile, Esq. Nathalie L. Rice