Matthew Rocheleau v. Department of Revenue (SPR 20180573)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 10, 2018 SPRlS/573 Roger H. Randall Department of Revenue 19 Staniford Street Boston, MA 02114 Dear Mr. Randall: I have received the petition of Matthew Rocheleau appealing the response of the Department of Revenue (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on April 20, 2018, Mr. Rocheleau requested the following records: "• Documents pertaining to any internal reviews, investigations, discipline of [a n identified] former DOR employee ... " • Any and all documents, records, items contained in the persom1el file of the ... [identified employee] ..." The Department provided a response on April 25, 2018, denying access to responsive records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Department's response, Mr. Rocheleau petitioned this office and this appeal, SPRl 8/573, was opened as a result. While this appeal was pending, the Department provided a supplemental response on May 10, 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, § lOA(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); 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 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

Roger H. Randall SPR18/573 Page2 May 10, 2018 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. 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 Department's April 2i11 response In its April 25, 2018 response, the Department asserted that the "materials [Mr. Rocheleau] asked for are not public records," because they are exempt from disclosure under Exemption ( c) of the Public Records Law. Exemption (c) The Department 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 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). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013).

Roger H. Randall SPR18/573 Page 3 May 10, 2018 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). The Department's May 1 oth supplemental response In its May 1 oth supplemental response, the Department indicated that the personnel file of the identified individual consists of the following records: (1) "Job application, promotion application, and resumes;" (2) "Appointment, promotion and transfer documents;" (3) "Receipt for Code of Conduct, given to all employees;" (4) "Employee Performance Reviews;" (4) "MBTA monthly pass forms;" ( 4) "Summons for witness;" (5) "Confidentiality reminders given to all employees;" (6) "Group Insurance Commission forms;" (7) "Emergency contact information;" (8) "Payroll deposit authorizations;" (9) "W-4 Forms;" (10) "Extended Illness Leave Bank forms;" (11) "Deferred Compensation forms;" (12) "Change of Address forms;" (13) "Salary Adjustment form;" (14) "Overtime Pay form;" (15) "Payroll correction memos;" (16) "Jury Duty form;" and (17) "A list of employees certified in CPR." Citing to the Wakefield decision, the Department asserted that all of the records stated above are exempt from disclosure "except for the MBTA monthly pass forms, salary adjustments, payroll correction, Jury Duty, and CPR forms," which the Wakefield Court indicated were not shielded under Exemption ( c ). Wakefield, 431 Mass. at 799-800. As a result, the Department indicated that Mr. Rocheleau should advise the Department should he wish to obtain copies of these records. Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § lO(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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. 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,

Roger H. Randall SPR18/573 Page 4 May 10, 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. Based on the Department's response I find that the Department has met its burden to establish that portions of the responsive records constitute one of the core categories of personnel information the Wakefield court found to be exempt under the personnel clause. Consequently, they may be properly withheld from disclosure under the first clause of Exemption ( c) . However, the Department is advised that the term "personnel file or information" in Exemption ( c) derives its meaning from the nature or character of the document, not from its label or its repository. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 5. Therefore, a custodian's designation of materials as personnel file or information will not be dispositive to that point. Id. at 5-6. Accordingly, it is unclear how certain information in the Department's possession, such as "Receipt for Code of Conduct, given to all employees," "confidentiality reminders given to all employees," "resumes," "summons for witness," "Group Insurance Commission forms," "Payroll deposit authorizations," "Extended Illness Leave Bank forms," and "Deferred Compensation forms," constitute one of the core categories of personnel information the Wakefield Court found to be exempt. See Wakefield, 431 Mass. at 800 (indicating that "the legislation does not exempt from disclosure a personnel record wholly umelated to any individual's privacy interest ... "); see also Brogan, 401 Mass. at 309 ( concluding that "not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection"). The fact that these records or information may be held in a personnel file does not render the records completely · exempt as personnel records under Exemption (c ) . I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Department did not meet its burden to explain how the first clause of Exemption (c) permits it to withhold the records in their entirety, the requested records may not be withheld. Accordingly, the Department is hereby ordered to review the records, redact where necessary, and provide Mr. Rocheleau with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Roger H. Randall SPR18/573 Page 5 May 10, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mathew Rocheleau