Colman Herman v. Office of the State Auditor (SPR 20180315)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 23, 2018 SPRlS/315 Timothy V. Dooling, Esq. General Counsel/ Deputy Auditor Office of the State Auditor Suzanne M. Bump One Ashburton Place, Room 1819 Boston, MA 02108 Dear Attorney Dooling: I have received the petition of Colman Herman appealing the response of the Office of the State Auditor (Office/OSA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 23, 2018, Mr. Herman requested "hard copies of any and all communications involving the separation of [a n identified individual] from the office of the state auditor." The Office acknowledged receipt of the request on February 23, 2018, and provided a response on March 9, 2018, which included portions of the responsive records. However, the Office denied access to other records pursuant to Exemptions (b) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(b), (c). Unsatisfied with the Office's response, Mr. Herman petitioned this office and this appeal, SPRl 8/315, 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. 3.2.03(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, § 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. 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

Timothy V. Dooling, Esq. SPR18/315 Page2 March 23, 2018 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. The Office's March 9th response In its March 9, 2018 response, the Office provided two documents, the identified individual's "1/24/18 resignation letter" and "Suzanne M. Bump's 1/24/18 letter accepting [the identified individual's] resignation." The Office indicated that it identified two emails responsive to Mr. Herman's request but asserts the following exemptions under the Public Records Law to withhold responsive records. Exemption (b) The Office indicated that it withheld responsive records pursuant to Exemption (b) of the Public Records Law. Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. C. 4, § 7 (26)(b ). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest. For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. Under its Exemption (b) claim, the Office indicated that the materials in their entirety contain "information that relates solely to OSA's internal personnel rules and practices" and that "proper performance of its necessary government function necessitates such withholding." Therefore, the Office contends Exemption (b) "protects OSA from producing for public inspection information and material in which the public 'cannot reasonably be expected to have a legitimate interest."'

Timothy V. Dooling, Esq. SPR18/315 Page 3 March 23, 2018 Exemption (c) The Office claimed 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 G. L. c. 4, §7 (26)(c). First clause ofE xemption (c) - personnel 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). 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 ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). Under the first clause of Exemption ( c ), the Office indicated that the information in the emails "constitutes personnel file data ... [t]herefore, releasing these e-mails exposes OSA's internal personnel file information and [the identified individual's] private personnel file information." The Office, citing to the Globe Newspaper Co. decision, indicated that the emails "contain information relating to a particular individual's personnel file. Therefore, under the

Timothy V. Dooling, Esq. SPR18/315 Page 4 March 23, 2018 analysis which the SJC articulated in [the above case], OSA withholds the identified e-mails as they clearly and unambiguously relate to" the identified individual's personnel file. Citing also to Wakefield, the Office indicated that the emails contain information regarding "a specific employee's work evaluation, disciplinary documentation, and/or termination or separation from employment." As such, "[t]hese categories of information used in making employment decisions regarding an employee, are 'absolutely exempt from disclosure.'" Wakefield, 431 Mass. at 799. Second clause ofE xemption (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 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. Id. 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. Under the second clause of Exemption (c ) , the Office indicated that because it has released a copy of the settlement agreement between it and the identified individual to Mr. Herman, release of these emails would constitute "an unnecessary and unwarranted invasion of [the identified individual's] personal privacy." Although public employees have a diminished expectation of privacy in matters relating to their official responsibilities, some information concerning a public employee's employment has been found to be sufficiently personal to be exempt from mandatory disclosure. In Wakefield, the Court found that at a minimum, personnel information includes, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion,

Timothy V. Dooling, Esq. SPR18/315 Page 5 March 23, 2018 or termination information pertaining to a particular employee." Wakefield, 431 Mass. at 798. The Court concluded that these pieces of information "constitute the core categories of personnel information that are useful in making employment decisions regarding an employee and may be properly withheld from disclosure under Exemption (c)." Id. at 798-99. See also Connolly v. Bromery, 15 Mass. App. Ct. 661, 664 (1983) (finding that work and school performance evaluations are information of a personal nature which are exempt from disclosure under the first clause of exemption (c)). Consequently, because these emails contain information regarding the identified employee's work evaluation, disciplinary documentation, and/or termination, which were determined to be exempt as personnel in Wakefield, I find the Office acted properly in withholding these records from disclosure. Conclusion Accordingly, whereas I find the Office may permissibly withhold responsive records under the first clause of Exemption (c), I decline to opine on the Office's Exemptions (b) and second clause of Exemption ( c) claims supporting non-disclosure of the requested records. I will consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Supervisor of Records cc: Colman Herman