Joshua Carrier v. Department of Correction - Division of Human Resources (SPR 20180417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 2, 2018 SPRlS/417 Patricia Snow Personnel Supervisor Department of Correction - Division of Human Resources 1 Industries Drive, P.O. Box 946 Norfolk, MA 02056 Dear Ms. Snow: I have received the petition of Mr. J. D. Carrier appealing the response of the Department of Correction Division of Human Resources (Department) to his request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 5, 2018, Mr. Carrier requested the following records for December 24 - 26, 2016 and December 23 - 26, 2017: 1. Any and all information about total salary spent on the above dates for Old Colony Correctional Center. This would include, but not limited to Correction Officer, Maintenance Staff, Recreational Staff, Support Staff and any and all Supervising Staff. This would be only for the above mentioned individuals who were physically present and working on the above mentioned dates. 2. Any and all information about the total number of personal, vacation, sick, FMLA, comp and missed day(s) that was granted and/or requested and given to the employees at Old Colony Correctional Center on the dates stated above. This would need to be a list of DOC employees and they number of employees that actually received these day(s) off. 3. Any and all information about the total number of DOC staff that worked on the days stated above for the Old Colony Correctional Center institution only. This would include any information that would show the exact number of staff and position held (CO I, CO II, RO I etc ... ) that was physically present on the above mentioned days. The Department's March 21st response The Department's response, dated March 21, 2018, claims there are "no documents responsive" to Request Number 1. Documents responsive to Request Number 2 were withheld from disclosure under Exemption (c), "as they are personnel and medical information ... relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy." See G. L. c. 4, § 7(26)(c). The Department claims that records responsive to Request Number 3 are in the custody of the Old Colony Correctional Center. 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

Patricia Snow SPR18/417 Page 2 April 2, 2018 Unsatisfied with this response, Mr. Carrier petitioned this office, and this appeal was opened as a result. Request Number 1 and Number 3 - Possession, custody, or control of responsive records In responding to Request Number 1, the Department indicates that they are in possession of "no documents responsive" to Mr. Carrier's request. Mr. Carrier indicates that he "would tend to disagree that there are no documents that show how much salary was paid" in the relevant timeframe. In accordance with the Public Records Law, a custodian is expected to use their superior knowledge of the records in their custody to assist the requester in obtaining the desired information. 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). A records access officer (RAO) must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § 1O (b )(vii) ( a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). The Department's response to Request Number 3 indicates that they are not in possession ofresponsive records, and that Mr. Carrier must contact the Old Colony Correctional Center to receive these records. Mr. Carrier objects to this, claiming it is the responsibility of the Department's RAO to fulfill his request. An RAO must identify the agency or municipality that may be in possession, custody or control of the public record sought, if known. See G. L. c. 66, § IO(b)(iii).The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 4, § 7(26). Request Number 2 - Exemption (c) In responding to Request Number 2, the Department claims that the "requested records are exempt from disclosure under exemption (c) to the Public Records Law, G. L. c. 4 § 7(26) as they are personnel and medical files or information, or materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy." 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

Patricia Snow SPR18/417 Page 3 April 2, 2018 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, 432-34 (1983). Only the second clause of Exemption ( c) is applicable to this determination. 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. In support of the Department's claim that the requested records are personal records exempt from disclosure, you indicate that the "requested records are exempt from disclosure under exemption (c) to the Public Records Law, G. L. c. 4 § 7(26) as they are personnel and medical files or information, or materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy." It is unclear why responsive records which include information on "personal, vacation, sick, FMLA, comp, and missed days" are not public records subject to disclosure. See Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (concluding that "information only as to the names of school committee employees, and the dates and generic classifications, e.g., 'sick day,' 'personal day,' etc. of their absences were not 'intimate details of a highly personal nature that the legislature intended to exempt from mandatory disclosure."'). Consequently, the Department must explain why any non-exempt, segregable portions of the responsive records cannot be disclosed. See G. L. c. 66, § lO(a).

Patricia Snow SPR18/417 Page 4 April 2, 2018 It is my understanding that a Public Records Division staff member contacted you about this matter and you indicated your willingness to provide Mr. Carrier with a supplemental response. Conclusion Accordingly, the Department is hereby ordered to provide a response to Mr. Carrier without delay. Said response shall be made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Carrier may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. J.D. Carrier