Charlie Payne v. City of Framingham Parks & Recreation Department (SPR 20180550)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 8,2018 SPRl81550 Mr. James Snyder Records Access Officer City of Framingham- Parks & Recreation Department 150 Concord St Framingham, MA 0 1702 Dear Mr. Snyder: I have received the petition of Charlie Payne appealing the response of the City of Framingham's Parks & Recreation Department (Department) to a request for public records. G. L. c. 66, 5 l0A; see also 950 C.M.R. 32.08(1). Mr. Payne originally requested public records from the Department on February 1,2018 . On February 15,2018 , the Department sent a response email with attached requested documents of the Pilgrim Interior Certified Payroll for the Loring Arena Project. Mr. Payne raised issues about addresses being redacted in the documents. In a response email to Mr. Payne on April 18,2018 , the Department cited the privacy clause of Exemption (c) as the reason for the redaction of records. Mr. Payne acknowledges the response by the Department and requested an appeal on April 24,201 8. 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 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 Mass. 507, 5 11 (19 95) (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. G. L. c. 66, 5 lO(b)(iv). One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 * (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Mr. James Snyder Page 2 May 8,2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 8 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (c) The Department claims the records may be withheld under the second clause of 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. 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). 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. 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 a. disputes and reputation. 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 Id. in a law-abiding and efficient manner. at 292.

Mr. James Snyder Page 3 May 8,2018 Appeal st'' The Department references Exemption (c) in the April 1 email for withholding records because "disclosure would constitute an unwarranted invasion of personal privacy not outweighed by the public's interest in disclosure of the responsive materials. No whole documents or records were withheld." Despite the Department's reference to Exemption (c), it is unclear the specific reasons for such redaction of records. G. L. c. 66, 5 lO(b)(iv) (a written response shall "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 ... . "); Flatley, 419 Mass. at 5 11 (custodian has the burden of establishing the applicability of an exemption). The Public Records Law states that "the burden shall be upon the custodian to prove with speciJicity the exemption which applies." G. L. c. 66, 5 1O (b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The Department's April 18 ''' response did not contain the specificity required in a denial of access to public records. Instead, the Department's response cites Exemption (c) without further explanation as to the exemption's applicability to the requested records. The Department is not permitted to issue a blanket denial without providing further information with respect to the requested records. As a result, I find that the Department did not satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Conclusion Accordingly, the Department is ordered to produce any responsive records in its possession in a manner consistent with this determination, the Public Records Law, and its Regulations within ten business days. A copy of 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. Mr. Payne may appeal the substantive nature of the revised response within ninety days. See 950 C.M.R. 32.08(1). Sincerelv. u Rebecca S. Murray Supervisor of Records cc: Mr. Charlie Payne