James P. Kinsella v. Bourne, Town of (SPR 20180951)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Recovds July 10,2018 SPR181951 Barry H. Johnson Town Clerk Town of Bourne Town Hall 24 Perry Avenue Buzzards Bay, MA 02532 Dear Mr. Johnson: I have received the petition of James P. Kinsella of the Enterprise Newspapers appealing the response of the Town of Bourne (Town) to a request for public records. G. L. c. 66, 5 IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kinsella requested a copy of the minutes of the -- Town's April 18,201 8 executive session of the Board of Selectmen (Board). The Town provided Mr. Kinsella with the responsive executive session minutes of the st" April 1 Board meeting, redacted pursuant to Exemptions (b) and (c) of the Public Records Law. As a result of the redaction, Mr. Kinsella petitioned the Supervisor of Records (Supervisor). 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, 5 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, 5 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, 5 10(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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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 Page 2 July 10,2018 The Town's June 1,2018 response The Town has provided Mr. Kinsella with the responsive April 24, 201 8 executive session minutes of the Board in redacted format under Exemptions (b) and (c) of the Public Records Law. Exemption (b) The Town's June lSrte sponse indicated that the it redacted content from the Board's April 24th executive session minutes 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 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 lnformation 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 lnformation Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Hiaains, 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 Marrera 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). 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 lStr esponse has not demonstrated how disclosure of any of the redacted content in the executive session minutes, in part or in whole, would compromise the workings of the Town

Barry H. Johnson Page 3 July 10,201 8 itself. I find that the Town has not met its burden of demonstrating how the redacted content in the minutes is 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 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 Cow. 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 ,C omm 43 1 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 -0 11 8 4-A (June 14,201 3). 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, 43 1 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 matters. See George W. Prescott Publ'g, Co. v. Register of Probate for Norfollc Cntv., 395 Mass. 274,278 (1 985); 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. 15 1, 158 (1 979). As a result, certain information that is considered personal in the ordinary sense of the word may be

Barry H. Johnson Page 4 July 10,2018 considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Cornm. of Westport, 401 Mass. 306,309 (1987). The Town has not demonstrated that the redacted content in the responsive minutes constitutes a core category of records or information 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 responsive content in the minutes may be withheld as personnel information under the first clause of Exemption (c). Second clause of (c) -privacy The Town's June lStr esponse claims Exemption (c) as a whole to withhold content from the responsive minutes; however, the Town has not specifically explained how the redacted content of the minutes relates to personal privacy. 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. Tomes v. Attorney Gen., 391 Mass. 1, 9 (1 984); Attorney Gen. v. Assistant Comm'r of Real Property Dep7t,3 80 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 bhen 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 (20 17). 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 Id. disputes and reputation. 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 29 1. The public has a recognized interest in laowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. The Town has not demonstrated how the second clause of Exemption (c), the privacy

Barry H. Johnson Page 5 July 10,2018 clause, applies to withhold the portion of the responsive executive session minutes 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 redacted content of the executive session minutes. Burden of specificity 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, 5 lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The Town did not meet its burden of demonstrating how the redacted portion of the executive session minutes is 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, § 1O (a). Conclusion Given that the Town did not provide the specificity required in withholding the content from the minutes pursuant to Exemptions (b) and (c), the Town may not withhold the information. Accordingly, the Town must review the request, redact the records only where necessary and provide the requested records in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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: James P. Kinsella Robert S. Troy, Esq., Troy Wall Associates