Kaitlyn S. Farina v. Hingham, Town of - Town Administrator (SPR 20180809)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

June 18, 2018 SPR18/809

Thomas Mayo Town Administrator Town of Hingham 210 Central Street Hingham, MA 02043

Dear Mr. Mayo:

I have received the petition of Kaitlyn Shinney Farina appealing the response of the Town of Hingham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 13, 2017, Ms. Farina requested various categories

of records from the Town including “images or video camera footage” of an identified individual.

Previous appeals

This request was the subject of two previous appeals. See SPR18/552 Determination of Supervisor of Records (May 8, 2018); SPR18/041 Determination of the Supervisor of Records (January 18, 2018). I closed SPR18/552 by ordering the Town to provide Ms. Farina with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The Town provided a response on May 29, 2018. Unsatisfied with the Town’s response, Ms. Farina petitioned this office and this appeal, SPR18/809, was opened as a result.

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.MLR. 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.

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

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-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.

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Fee estimates

A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i).

Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv).

A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d) (iii); 950 CMR 32.06(4).

The Town’s November 27" fee indicates the Town “estimate[s] that the cost of gathering this information will be $225.00.” It further indicates that “[t]his estimate is the result of the amount of time required of the lowest paid employee(s) capable of accomplishing the task,” and includes a breakdown of “[e]leven hours (less two) = 9 x $25 = $225.” In my May 8" determination, I found the Town’s fee estimate lacked sufficient detail. Specifically, the Town had not indicated whether it is charging for searching, compiling, segregating, redacting or reproduction of the responsive records or some combination thereof. Further, the Town had not provided an explanation to justify eleven hours to “[ gather] this information.”

Although the Town in its May 29" response indicates that it is charging for searching for and possible compiling of the responsive records, the Department fails to provide an explanation to justify four hours of search and possible compilation time. With respect to its two hour redaction charge, the Town’s response fails to identify a law requiring redaction. As such, the Town is not permitted to charge for redaction. See G. L. c. 66, § 10(d)(iii); 950 CMR 32.06(4).

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Accordingly, the Town is hereby ordered to provide Ms. Farina with a revised fee consistent with the Public Records Law, its Regulations and this determination.

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. Lec. 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. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

In its May 29" response, the Town indicates that “any criminal investigation information [Ms. Farina has] sought would be exempt from disclosure under exemption (a) of the Public Records Law.” Exemption (c)

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).

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

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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).

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). Asa 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).

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

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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.

In support of its Exemption (c) claim, the Town’s May 29" response indicates, “Exemption (c) applies to [Ms. Farina’s] request as [she has] sought medical and other personnel records of firefighter Rapoli.” The Town indicates it has “been unable to locate any records that you have requested on firefighter Connolly and Deputy Lachance. Had [the Town] located any

documents they likely would have been exempt for the reasons stated above pursuant to | exemption (c).”

No duty to create records; specificity

Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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 of records at the time of the request. See G. L. c. 4, § 7(26). Where the Town has confirmed in its May 29" response it does not possess responsive records, I find that Ms. Farina’s appeal related to those requests has been resolved.

Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. See Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town’s May 29" response did not contain the specificity required in a denial of access to public records. Instead, the Town’s response merely

cites Exemptions (a) and (c) without sufficient explanation as to either exemptions’ applicability to the requested records.

With respect to the Town’s Exemption (a) claim, its response does not identify a statute that either specifically or by necessary implication exempts the requested records from disclosure. With respect to the Town’s Exemption (c) claim, its response does not identify which clause of Exemption (c) it is claiming applies to permit withholding of the requested records. Further, the Town has not provided sufficient specificity to justify withholding of the records under either clause. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Town did not satisfy its burden in responding to this records request. The Town 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. See G. L. c. 66, § 10(b)(iv).

Further, I find the Town must provide a response to Ms. Farina that provides additional information regarding whether the Town possesses responsive records. See G. L. c. 66, § 10(b)(iv) (a written response shall "identify any records, categories of records or portions of

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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 511 (custodian has the burden of establishing the applicability of an exemption).

Order

Accordingly, the Town is hereby ordered to provide Ms. Farina with a response to the request, 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.

Sincerely,

Rebecca S. 0. Muni — Supervisor of Records

cc: Kaitlyn Shinney Farina