AE Seabass v. Oxford, Town of - Town Clerk (SPR 20180775)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 12, 2018 SPRlS/775 Lori A. Kelley Town Clerk Town of Oxford 325 Main Street Oxford, MA 01540-1739 Dear Ms. Kelley: I have received the petition of AE Seabass appealing the response of the Town of Oxford (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, AE Seabass requested a copy of: any alcohol and drug testing results for Town employees for the period of March 201 7 through the date of the request. In a May 11, 2018 response, the Town denied the request pursuant to Exemption (a) and both clauses of Exemption ( c) of the Public Records Law. As a result, AE Seabass petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Th.e 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, § 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 ... "); 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). 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

Lori A. Kelley SPR18/775 Page2 June 12, 2018 The Town's May 11, 2018 response In the Town's May 11th response, it indicates that the records requested have been withheld under Exemption (c) of the Public Records Law as well as G. L. c. 214, § lB and federal regulation, 49 C.F.R. 40.321, as they operate through Exemption (a). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. 49 C.F.R. 40.321 The Town's May 11th response indicates that federal regulation, 49 C.F.R. 40.321, will allow the Town to withhold the responsive records, because it expressly prohibits employers from disclosing the results of drug and alcohol tests and results without the employee's consent. 49 C.F.R. 40.321; 49 U.S.C. 102. 49 C.F.R. 40.321, the general confidentiality rule for drug and alcohol test information for transportation workplace drug and alcohol testing programs required by the United States Department of Transportation (DOT), states: Except as otherwise provided in this subpart, as a service agent or employer participating in the DOT drug or alcohol testing process, you are prohibited from releasing individual test results or medical information about an employee to third parties without the employee's specific written consent. (a) A "third party" is any person or organization to whom other subparts of this regulation do not explicitly authorize or require the transmission of information in the course of the drug or alcohol testing process.

Lori A. Kelley SPR18/775 Page 3 June 12, 2018 (b) "Specific written consent" means a statement signed by the employee that he or she agrees to the release of a particular piece of information to a particular, explicitly identified, person or organization at a particular time. "Blanket releases," in which an employee agrees to a release of a category of information (e.g., all test results) or to release information to a category of parties (e.g., other employers who are members of a C/TP A, companies to which the employee may apply for employment), are prohibited under this part. 49 C.F.R. 40.321. While the Town has cited a federal regulation to withhold the responsive information, it is unclear how this federal regulation relating to drug and alcohol testing pursuant to a DOT requirement applies to all of the requested tests of Town employees. When withholding records, a records custodian is required to provide specific reasons for the withholding. G. L. c. 66, § 1O (b )(iv). The Town has not met its burden to demonstrate how the Town may withhold all of the requested records pursuant to a federal regulation which applies to transportation workplace drug and alcohol testing. G. L. 214, § 1B C. Although the Town cites G. L. c. 214, § lB in support of its position to withhold records under Exemption (a), this statute does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding of records responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cnty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § lB provides no alternative legal basis to resist inspection of requested materials). Exemption (c) 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). 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). First clause ofE xemption (c) - personnel information 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

Lori A. Kelley SPR18/775 Page 4 June 12, 2018 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). 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 Publ'g Co. v. Register of Probate for Norfolk Cnty., 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 if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). The Town's May 11th response states, "[d]rug and alcohol testing results constitute information that would be useful in making employment decisions regarding an employee. Therefore, such documents constitute personnel information and are exempt from disclosure pursuant to the first clause of exemption (c)." While the Town has indicated that the drug and alcohol testing results would be useful in making an employment decision, it did not specifically explain whether the record or information falls within one of the core categories of personnel file information described in Wakefield. See Wakefield, 431 Mass. at 798. Further, the Town did not explain whether the testing records pertain to identified individuals. Courts have concluded that "personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature." Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). Within the context of the first clause of Exemption (c), the Supreme Judicial Court has determined that records are "personal" if they pertain to a particular individual. Wakefield, 431 Mass. at 799. Given that the Town has not demonstrated that the record is one of the core categories of personnel information described in Wakefield, and that is of a personal nature pertaining to a particular individual, I find that the Town has not met its burden to withhold the requested information as personnel information under the first clause of Exemption ( c) of the Public Records Law. See Globe Newspaper Co., 388 Mass. at 438.

Lori A. Kelley SPR18/775 . Page 5 June 12, 2018 Second clause of (c) - privacy clause 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, 477 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. Based on a review of the Town's May 11th response, it is unclear what type of personal information the Town considers the testing record to be related to; such as, "marital status, paternity, substance abuse, government assistance, family disputes and reputation." See PETA, at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988). The Town merely states that the information is "medical information" that is of a highly personal nature. However, in order to withhold the record or portions of the responsive record, the Town must demonstrate that, if disclosed to the public it would result in personal embarrassment to an individual of normal sensibilities; whether the materials contain intimate details of a highly personal nature; and whether the same information is available from other sources. See PETA, 477 Mass. at 292. Finally, in claiming that the records may be withheld in their entirety under the second clause of Exemption ( c) , the Town did not meet its burden of applying the balancing test set forth in PETA . The May 11th response only states, "[t]he second clause of exemption ( c) requires a balancing test measuring the public's right to know against the relevant privacy interests at stake." (citing, Real Property Dep't, 380 Mass. 623). I find that the Town has not met its burden

Lori A. Kelley SPR18/775 Page 6 June 12, 2018 of specificity in demonstrating that the public's interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner does not outweigh any privacy interest of the subjects of the information. Therefore, based on the Town's response, I find it has not met its burden in demonstrating that the second clause of Exemption (c) allows the Town to withhold the records in its entirety. Burden of specificity; duty to segregate The Town denied AE Seabass's request in its entirety under Exemptions (a) and (c) without providing sufficient support for withholding the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). It is my understanding that a Public Records Division attorney contacted you regarding this appeal, and that the Town's Legal Counsel has been contacted regarding this matter. Conclusion Given that the Town did not meet its burden of specificity in withholding records under the Public Records Law, the Town is ordered to review the record(s), redact where necessary, and provide the records to EA Seabass 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. The Town may request reconsideration of this determination within ten (10) business days of the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: AE Seabass Joseph Fair, Esq., KP Law