Lisa Morales v. Onset Water Department/Fire District (SPR 20180415)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 11, 2018 SPR18/415 Melissa Goodell Records Access Officer Town of Onset - Fire District 15 Sand Pond Road, P.O. Box 44 Onset, MA 02558 Dear Ms. Goodell: I have received the petition of Lisa Morales appealing the response of the Town of Onset Fire District (Fire District) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 26, 2018, Ms. Morales requested a copy of: 1. Any nomination papers filed by Benjamin Hughes for any office at any time; 2. A statement of any payments made to Benjamin Hughes at any time; 3. Total dollar amount of any health or dental or other benefits provided to Benjamin Hughes at any time; 4. Certified copy of voter registration for Benjamin Hughes for 2015, 2016 and 2017, showing primary residence. In a March 28, 2018 email petition, Ms. Morales asserts that the Fire District denied her February 26th Request Number 3 for the "dollar amount of any health or dental benefits provided to Benjamin Hughes." As a result this appeal was opened. Requirements in petitioning the Supervisor of Records A review of Ms. Morales' petition to the Supervisor of Records (Supervisor) reveals that Ms. Morales did not provide the Fire District with a copy of her petition for an appeal. As a result, a copy of the appeal file, including Ms. Morales' petition was provided to the Fire District and its Legal Counsel, Peter C. Sumners of Murphy, Lamere & Murphy, P. C. Ms. Morales is advised that in petitioning the Supervisor for an appeal, "the requestor 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, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Melissa Goodell SPR18/415 Page 2 April 11, 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, § IOA(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, § 1O (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). The Fire District's March 8th response With its March 8th response, the Fire District enclosed the information regarding nomination papers and salary of Benjamin Hughes, a member of the Town of Onset Water Commissioners, and a copy of the November 21, 2017 letter that the Fire District previously provided in response to Ms. Morales' November 9, 2017 request. While Ms. Morales did not provide the Supervisor with a copy of her November 9th request, the Fire District's response indicates that Ms. Morales specifically requested: number of active employees covered by any district insurance, and total cost FY 2017; same for number of dependents [sic]; same for number of Committee members and spouse(s)/dependents; number of retirees surviving spouses and total costs. The spreadsheet provided to Ms. Morales lists the number of individuals in the Fire District that received health insurance benefits in 2017. The spreadsheet provided: 1. the name of the health insurance plan offered by the Fire District; 2. dental benefits; 3. the number of active and retirees that either selected a family or a single plan; 4. total costs per month for the family plan and the single plan; 5. total cost per year for the family plan and the single plan; 6. per year cost broken down by active employees or retirees; and 7. the total cost to the Fire District per year for health insurance and dental benefits for all employees of the Fire District.

Melissa Goodell SPR18/415 Page 3 April 11, 2018 No Responsive records With regard to Ms. Morales' Request Number 4, the Fire District informed Ms. Morales in its March 8th response that it.cannot provide her with the certified copies of Benjamin Hughes' voter registration because those records are not in the custody of the Fire District. The Town referred Ms. Morales to the Office of the Town Clerk in the Town of Wareham for the voter registration records. Under the Public Records Law, the records access officer (RAO) shall identify any records that are not within its possession, custody or control of the public record sought. See G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.06(3)(c)(2). There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). April 5th response On April 5t\ the Fire District's Legal Counsel Peter C. Sumners of Murphy, Lamere & Murphy, P. C. provided this office and Ms. Morales with a supplemental response concerning her February 26th requests. Attorney Sumners explained that the Fire District responded to each of the itemized requests separately and that the Fire District's response was complete and satisfied its obligations under the Public Records Law. The Fire District provided all responsive records for Requests Numbered 1, 2 and 4. Regarding Ms. Morales' Request Number 3, the Fire District's April 5th response indicates that the specific request for "the total dollar amount of any health or dental or other benefits provided to Benjamin Hughes at any time" cannot be provided because based on previous information provided to Ms. Morales in November 2017 in combination with information in her February 26th request, the privacy clause of Exemption (c) would be triggered. Exemption (c) Exemption (c) applies to: 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).

Melissa Goodell SPR18/415 Page4 April 11, 2018 The Fire District's April 5th response indicates that the second clause of Exemption (c) applies to withhold the amount of money the Fire District paid for a particular healthcare plan chosen by an employee, including whether the employee selected a single plan or a family and/or the cost of plan selection. 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 , 4 77 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 Fire District indicates in its April 5th response that certain private information regarding an employee would likely be revealed through the disclosure of a record of a benefit plan and/or the cost of such a plan including marital status of the individual employee/recipient of the healthcare benefit, if the name of the individual and amount of money the Fire District pays toward the individual's healthcare insurance was released, coupled with the information already provided to Ms. Morales in November 2017. The Fire District's April response reiterates that in the spreadsheet provided to Ms. Morales in November reveals the amount the Fire District provides per month and per year for health and dental insurance, as well as the number of employees who are on each plan, single or family, for Fiscal Year 2017. Therefore, the Fire District posits that if Ms. Morales is now provided with the exact amount of money that the Fire District pays for Mr. Hughes' health and dental coverage in response to her February 2018 request, she could easily figure out whether

Melissa Goodell SPRlS/415 Page 5 April 11, 2018 Mr. Hughes' selected a single plan or a family plan; thus, triggering the privacy clause of Exemption (c) regarding "marital status." The Fire District has demonstrated that if it were disclosed that an individual has selected a single plan versus a family plan the disclosure would reveal an individual's marital or familial status. Marital Status is one example of personal information that the second clause of Exemption ( c) seeks to protect; however, the public has an interest in knowing whether an individual is being provided benefits paid for with taxpayer money. Exemption ( c) also includes 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, 4 77 Mass. at 291 Where the Fire District has already provided the total amount of money the Fire District pays to provide health care insurance and dental benefits to its employees, retirees, and family members of employees/retirees, if the Fire District now provides Ms. Morales with a statement which confirms whether Mr. Hughes' has availed himself of the health care insurance and/or dental benefits, the public's interest would be satisfied without any seriousness of any invasion of Mr. Hughes' personal privacy. I find that the Fire District has met its burden of claiming the second clause of Exemption ( c) to protect an "unwarranted invasion of personal privacy" by withholding the specific amount of money and the selection of a particular healthcare plan regarding Mr. Hughes. However, the names of individuals who are receiving healthcare or dental benefits cannot be withheld under Exemption ( c) . Therefore, I also find that it is unclear whether the Fire District has provided Ms. Morales with a statement confirming whether Mr. Hughes is receiving any healthcare and/or dental benefits from the Fire District. Accordingly, the Fire District must provide Ms. Morales with a statement confirming whether the Fire District is paying for any healthcare and/or dental benefits for Mr. Hughes. Order Accordingly, the Fire District is ordered to clarify whether the District has records indicating whether Mr. Hughes is receiving any healthcare or dental benefits from the Fire District, and accordingly provide Ms. Morales with a response 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.

Melissa Goodell SPR18/415 Page 6 April 11, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Lisa Morales Peter C. Sumners, Esq.