Brooks A. Ames v. Brookline, Town of (SPR 20181170)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 15, 2018 SPRlS/1170 Demitrios M. Moschos, Esq. Mirick O'Connell 100 Front Street Worcester, MA O1 608-14 77 Dear Attorney Moschos: I have received the petition of Brooks A. Ames, Esq. of the Brookline Justice League appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Ames requested: "(1) any agreement between the Town and [an identified person] concerning the terms of her separation from employment by the Town, including but not limited to any financial severance, and (2) any documentation concerning any administrative leave pay granted [the identified person]." The Town provided Attorney Ames with a copy of the employment separation agreement redacted under Exemption (c), and a copy of the checks written by the Town to the identified employee. Attorney Ames petitioned the Supervisor of Records (Supervisor) regarding the redaction of the separation agreement, and as a result 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

Demitrios M. Moschos, Esq SPR18/1170 Page 2 August 15, 2018 The Town's June 28, 2018 response In a June 28th email, Town Clerk Patrick Ward provided Attorney Ames with a copy of the employment separation agreement of an identified employee. This response states, "[t]he attached Agreement is redacted to omit information that is exempt from disclosure pursuant to exemption (c) of the Public Records law." 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). 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). 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). 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

Demitrios M. Moschos, Esq SPR18/1170 Page 3 August 15, 2018 Exemption ( c) , the Supreme Judicial Court has determined that records are "personal" if they pertain to a particular individual. Wakefield, 431 Mass. at 799. The Town did not demonstrate how the redacted content in the employment separation agreement may be withheld under the first clause of Exemption ( c) as personnel information. Therefore, I find the Town has not met its burden of specificity in claiming the first clause of Exemption (c). Second clause of (c) -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. 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. It is unclear whether the Town is also claiming the second clause of Exemption ( c) , the privacy clause, to withhold any of the content in the employment separation agreement, therefore, I find the Town has not met its burden of specificity in claiming Exemption (c ) . Burden of specificity in responding and claiming exemptions The Town redacted the employment settlement.agreement (agreement) pertaining to an identified individual without providing the required specificity in claiming Exemption ( c) to

Demitrios M. Moschos, Esq SPR18/1170 Page4 August 15, 2018 withhold the content within the agreement. 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 content within the record is exempt from disclosure under Exemption ( c ). 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 in an August 9th correspondence, the Town's Legal Counsel, Demitrios M. Moschos of Mirick O'Connell, informed this office that he will provide a supplemental response relative to the Town's Exemption (c) to withhold certain of the content within the agreement. Order Accordingly, the Town is hereby ordered to provide a response to Attorney Ames to support its redactions of the record under Exemption (c), 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick J. Ward, Town Clerk Brooks A. Ames, Esq.