James P. Kinsella v. Bourne, Town of (SPR 20180875)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 27, 2018 SPR18/875 Barry H. Johnson Town Clerk/Records Access Officer Town of Bourne Town Hall 24 Perry A venue, Room 103 Buzzards Bay, MA 02532 Dear Mr. Johnson: I have received the petition of James Kinsella of the Bourne Enterprise appealing the response of the Town of Bourne (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Kinsella requested a copy of records pertaining to an investigation of an identified employee involving the 2018 transfer of a firefighter from the Town's Fire Department to the Town ofEaston's Fire Department. The Town's June 13, 2018 response indicates that the Town is withholding all the responsive records pursuant to Exemptions (b) and (c) of the Public Records Law. As a result, Mr. Kinsella petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (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

Barry H. Johnson SPR18/875 Page 2 June 27, 2018 The Town's June 13, 2018 and June 26, 2018 responses The Town's initial response on June 13th asserted blanket exemption claims indicating that Exemptions (b) and (c) allow the Town to withhold the responsive records in their entirety. After this appeal was orened, the Town's Legal Counsel, Robert S. Troy of Troy Wall Associates provided a June 26t supplemental response that indicates the Town is claiming both clauses of Exemption (c) to withhold responsive records. The June response states, "[s]ince the request squarely asks for documents that the statute specifically exempts, it is respectfully suggested that this Appeal should be denied and the Decision of the Records Access Officer, Town Clerk Barry H. Johnson be upheld." Exemption (b) The Town's June 13th response indicated that the Town is withholding the responsive records in their entirety pursuant to Exemption (b) of the Public Records Law. Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, Provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. C. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, ifreleased, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Manera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed).

Barry H. Johnson SPR18/875 Page 3 June 27, 2018 In Massachusetts, the records access officer or custodian normally must demonstrate that the information is not only related solely to internal rules or practices, but also that the proper performance of necessary government functions will be inhibited by disclosure. The Town's June 13th response has not demonstrated how disclosure of any of the records responsive to Mr. Kinsella's request, in part or in whole, would compromise the workings of the Town's fire department or the Town itself. I find that the Town has not met its burden of demonstrating how the records are exempt from disclosure under Exemption (b ). 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 of (c) -personnel and medical 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). 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. It is my understanding that the records are personal in nature because they pertain to the identified employee. 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

Barry H. Johnson SPR18/875 Page 4 June 27, 2018 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 has not demonstrated that all the responsive records constitute core categories of records useful in making an employment decision, such as disciplinary, demotion or termination information pertaining to the identified employee. See Worcester, 58 Mass. App. Ct. at 5. Therefore, the Town has not met its burden of specificity in claiming that the records may be withheld as personnel information under the first clause of Exemption ( c) . Second clause of (c) - privacy The Town's June 26th response also asserts that the employee should be afforded the protection the statute gives to the employee's personal privacy that the statute accords such records. 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 , 4 77 Mass. at 291. The

Barry H. Johnson SPR18/875 Page 5 June 27, 2018 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. The Town has not demonstrated how the second clause of Exemption (c), the privacy clause, applies to withhold the entirety or portions of the records responsive to Mr. Kinsella' s request. In addition, the Town has not applied the balancing test in PETA. Therefore, I find that the Town has not met its burden of specificity in claiming the second clause of Exemption ( c) to withhold the records in their entirety. Burden ofs pecificity in responding; duty to segregate 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, § 1O (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). The Town must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10( a). The Town did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemptions (b) and (c). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Town withheld responsive records without identifying what records it has in its possession, custody and control that are responsive to the request for records of the investigation of an identified employee. G. L. c. 66, § 1O (ii). Therefore, the Town must identify what type ofrecord(s) it has in its possession that the Town is withholding under Exemptions (b) and ( c ). Conclusion Given that the Town did not provide the specificity required in withholding the records, in their entirety, the Town cannot withhold the requested records in their entirety pursuant to Exemptions (b) and (c). See G. L. c. 66, § IO(b)(iv). Accordingly, the Town is ordered to review the responsive records, redact where necessary and provide Mr. Kinsella with the requested records, 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 to explain the redaction of the records 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 a reconsideration of this determination within 10 business days of the date of this letter.

Barry H. Johnson SPR18/875 Page 6 June 27, 2018 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: James Kinsella Robert S. Troy, Esq.