Todd Wallack v. Office of the Comptroller (SPR 20180585)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 11,2018 SPRlS/585 Katie Kendall Director of Special Projects Office of the State Comptroller One Ashburton Place, 9th Floor Boston, MA 021 08 Dear Ms. Kendall: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Office of the Comptroller (Office) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested "the employee ID Number, names, titles, department, and pay for any state employees that are not included in the Comptroller's CTHRU database for departments that provide data to the Comptroller." Mr. Wallack further notes "[i]fthe Comptroller cannot provide the names and employee ID numbers of certain employees under state law, I ask that the Comptroller cite the statute and provide a redacted version of the data that would still show the title, department and pay for any employees excluded from the public payroll data." In a response dated April27, 2018, the Office provided a responsive list with portions redacted. 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, § 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, § 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, § 10(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

Katie Kendall SPR18/585 Page2 May 11,2018 Current appeal In its April 27th response the Office asserts "[t]here are only 427 employees with the exemption currently. In the interest of transparency, we are providing you with the 'annual' salaries of the exempted employees. We can not provide any additional details since this information could be used to identify specific employees." You also note that "[b] eing astute with triangulating multiple sources of data, you can certainly understand how easy it is to identify individuals with records already available on the web. The Commonwealth believed at the time that the exclusion was necessary to meet the intent of the statute and protect other Commonwealth employees who might become inadvertent targets if an abuser were to locate an employee at work." The Office also provided a copy of its policy related to exemption of payroll records. The policy refers to a statute that provides that certain information is exempt from disclosure if the employee was a victim of an adjudicated crime or is a victim of domestic violence, sexual assault or rape. The relevant statute, currently G. L. c. 66, § 1O B, provides in pertinent part: The home address, personal email address and home telephone number of law enforcement, judicial, prosecutorial, department of youth services, department of children and families, department of correction and any other public safety and criminal justice system personnel, and of unelected general court personnel, shall not be public records in the custody of the employers of such personnel or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed, but such information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180 or to criminal justice agencies as defined in said section 167 of said chapter 6. The name, home address, telephone number and personal email address of a family member of any such personnel shall not be public records in the custody of the employers of the foregoing persons or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed. The home address, telephone number, personal email address or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name, home address, telephone number, personal email address or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed. In his appeal petition, Mr. Wallack asserts "I am particularly concerned about the department's decision to redact the department, title, and full 2017 pay details for each of the employees. Even if the Office of the Comptroller believes it needs to protect the identity of individual employees by withholding the name and employee ID number for each worker, the

Katie Kendall SPR18/585 Page 3 May 11, 2018 public deserves to know how many employees each department has, what they did, and how much each employee earned in 2017." Based on the Office's April2ih response, it is unclear how the policy referenced, or G. L. c. 66, § 1O B, allows it to withhold responsive categories of information at issue; specifically the categories not articulated in G. L. c. 66, § lOB. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature); see also G. L. c. 66, § 1O (b )(iv) (providing that an agency must identify any records, categories of records or portions of records that it intends to withhold, and provide the specific reasons for such withholding including the specific exemption or exemptions upon which the withholding is based). Conclusion Accordingly, the Office is ordered to provide Mr. Wallack a response 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. Sincerely, ~~· Rebecca S. Murray Supervisor of Records cc: Todd Wallack