Amy Leonard v. Hingham, Town of - Board of Selectmen (SPR 20181169)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 21, 2018 SPRlS/1169 Tom Mayo Town Administrator Town of Hingham 210 Central Street Hingham, MA 02043 Dear Mr. Mayo: I have received the petition of Amy Leonard of 95. 6 FM WATD News appealing the response of the Town of Hingham (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 6, 2018, Ms. Leonard requested "[a] less redacted copy of the settlement agreement in the amount of $86,500 that was issued to a Town employee since this information has already been released to another news outlet." Previous appeal This request was the subject of a previous appeal. See SPR18/896 Determination of the Supervisor of Records (July 2, 2018). I closed SPR18/896 by ordering the Town to provide Ms. Leonard 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. On August 2, 2018, the Town provided a response to Ms. Leonard. Unsatisfied with the Town's response, Ms. Leonard petitioned this office and this appeal, SPR18/1169, 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, § 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); 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 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

Tom Mayo SPR18/1169 Page2 August 21, 2018 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town's August 2nd response In the Town's August 211 response, it indicates that the responsive settlement agreement d is "related to a harassment investigation undertaken by the Town." The Town asserts that the redactions "are appropriate under [E]xemption (a) to the [P]ublic [R]ecords [L]aw." The Town claims that the "Town's Harassment Policy as well as relevant state laws (and guidelines published by MCAD) establish that the process shall remain confidential and records treated as confidential." The Town asserts that "it is appropriate (and legal) to redact any information that identifies ( or could reasonably lead to identifying) the individual who filed the complaint." The Town cites to "Chapter 278 of the Acts of 1996" and asserts that it "required the [Massachusetts Commission Against Discrimination (MCAD)] to adopt a model sexual harassment policy for cities and towns and MGL c l51B (sections 2 and 3) that authorize the MCAD to implement policies and rules that assist in goals of 151B." The Town asserts further that "[t]he MCAD model policy provides that the identity of the complainant shall remain confidential ( and in fact the identity of anyone else who participates in a sexual harassment investigation is to remain confidential to the extent possible)." The Town indicates that it "has adopted a policy that essentially mirrors the MCAD model policy." The Town claims "[E]xcmption (c) specifically exempts all documents or portions thereof that may result in an invasion of privacy." The Town explains that the "redactions were made for the purpose of protecting the privacy interests of a particularly named individual (a public employee). The individmd has requested this confidentiality and for the reasons stated above the Town concurs that codidentiality is appropriate." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necesscery 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

Tom Mayo SPR18/1169 Page 3 August 21, 2018 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 Cow:!, 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. Exemption (c) Exemption ( c) permits the withholding of: personnel and medical 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 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 Ncw0paper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 1 201 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

Tom Mayo SPR18/1169 Page4 August 21, 2018 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 Brogai:i 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 · . nation 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. Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption ich applies." G. L. c. 66, § 1O (b )(iv)( emphasis added); see also Globe Newspaper Co. v. ~l}o' ice Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town's 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) and makes reference to an MCAD act and statute and a Town policy without any further explanation as to the exemptions' applicability to the redacted portions of the record. 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 th1t the Town did not satisfy its burden in responding to this records request. The Town is advise,[ that a records custodian is required to not only cite an exemption,

Tom Mayo SPR18/1169 Page 5 August 21, 2018 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. With respect to its Exemption (a) claim, it is unclear how the claimed act, statute and Town policy permit withholding of the redacted portions. Based on the Town's response, it is uncertain how the redacted portions fall within a type of information that is specifically or by implication exempt by statute. Specifically, it is unclear what type of information is being redacted and how any of the cited statutes exempt that type of information. Further, the Town is advised that Exemption (a) applies to statutes and regulations with statutory authority; therefore, the Town has not demon:;trated how a Town policy may be utilized through Exemption (a). See G. L. c. 4, § 7(26)(a). With respect to its Exemption (c) claim, based on the Town's response, it is uncertain which clause of Exemption ( c) the Town is claiming and how either clause permits withholding of the redacted portions. Order Accordingly, the ""own is ordered to provide Ms. Leonard 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 eledronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murra~ Supervisor of Records cc: Amy Leonard