Wesley Hardy v. Easthampton, City of - Office of the Mayor (SPR 20181174)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 21, 2018 SPRlS/1174 Nicole LaChapelle City of Easthampton - Office of the Mayor 50 Payson A venue Easthampton, MA 01027 Dear Mayor LaChapelle: I have received the petition of Wesley Hardy appealing the response of the City of Easthampton (City) to a request for public records. G. L. c. 66," § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 20, 2018, Mr. Hardy requested" ... all emails containing: references to, discussions about, or information concerning, the SPIRT [sic] program. Since January 1, 2018." Previous appeal This request was the subject of a previous appeal. See SPRl 8/997 Determination of the Supervisor of Records (July 20, 2018). In my July 20th determination, I found that the City did not meet its burden to withhold responsive records under Exemption (f) of the Public Records Law. As such, I ordered the City to review the records, redact where necessary, and provide Mr. Hardy with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the July 20th determination, the City provided a response on August 6, 2018, which included responsive records in redacted form. The City claims the records were redacted pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Contending that "there were improper redactions and that the documents provided were not inclusive," Mr. Hardy petitioned this office and this appeal, SPR18/1174, was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response on August 17, 2018. 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 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

Mayor Nicole Lachapelle SPR18/1174 Page 2 August 21, 2018 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 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 City's August 6th response In its August 6, 2018 response, the City indicates that "the documents that were withheld contained sensitive information (names, addresses, and telephone numbers) pertaining to the participants of the SPIRIT Program, which information was requested to be kept confidential by the Department of Justice who administered the SPIRIT Program." The City indicates that the records are being provided in redacted form as "it believes appropriate ... to preserve the anonymity of the participants of the SPIRIT Program .... [This would allow the City to] maintain[] the privacy of the individuals who participated in tfie program as requested by the representatives of the US Department of Justice and its applicable regulations as was intended in its original response. See also 42 US.CA.§ 20009-2." The City's August 1111 supplemental response In its August 17, 2018 response, the City responds to the claims made in Mr. Hardy's petition for appeal. Records not inclusive With regards to Mr. Hardy's claim that "the documents were not inclusive," the City indicates that it "believes that it provided all responsive documents ...." The City indicates that because Mr. Hardy requested "emails that contained references to, discussions about, or information concerning, the SPIRIT program ..." from January 1, 2018 through June 2018, " ... a search was completed of the City's email server utilizing the words 'SPIRIT program' or 'SPIRIT' for the time period .... All the documents that were discovered utilizing the aforementioned search words were provided ..." with redactions. The City indicates that it "believes that it conducted a search of electronic emails consistent with best practices and provided responsive records to Mr. Hardy in accordance with his request while preserving the

Mayor Nicole LaChapelle SPR18/ll 74 Page 3 August 21, 2018 anonymity of the participants of the SPIRIT program. See Exemptions (c) and (f) of the Public Records Law." The City also asserts that it has no correspondence from the 47 individuals who received documents regarding the program. The City explains that" ... the emails that were sent to the participants did not request or require a response and the electronic search conducted by the City did not produce any such records." The City also contends that although "[s]ome participants contacted the City via telephone relative to the SPIRIT program ... such communications did not result in the creation of a public record." No duty to create records ih In its August 1 response, the City indicates that all the documents that were discovered utilizing the search words, "SPIRIT program" or "SPIRIT," were provided ... " The City also indicates that it did not receive any correspondence from the 47 individuals who received documents regarding the SPIRIT program because it did not request or require a response. Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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 ofrecords at the time of the request. See G. L. c. 66, § 1O (a)(ii). As Mr. Hardy appears to be in receipt of all responsive records in the City's possession, I find that the City has no duty to create additional records. Improper redaCtions In his appeal, Mr. Hardy claims an elected official's public domain email address was redacted from the responsive records. The City contends that it believes the redactions are appropriate based on Exemptions (a) and (c) of the Public Records Law. Exemption (a) The City cites a federal statute, 42 U.S.C.A. § 2000g-2, in support of its position to redact the names, addresses, phone numbers and email addresses of individuals who participated in the SPIRIT program. 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. 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

Mayor Nicole Lachapelle SPR18/1174 Page 4 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 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. The statute provides in relevant part: Cooperation with other agencies; conciliation assistance in confidence and without publicity; information as confidential; restriction on performance of investigative or prosecuting functions; violations and penalties (a) The Service shall, whenever possible, in performing its functions, seek and utilize the cooperation of appropriate-State or local, publ ie, or private agencies. (b) The activities of all officers and employees of the Service in providing conciliation assistance shall be conducted in confidence and without publicity, and the Service shall hold confidential any information acquired in the regular performance of its duties upon the understanding that it would be so held. No officer or employee of the Service shall engage in the performance of investigative or prosecuting functions of any department or agency in any litigation arising out of a dispute in which he acted on behalf of the Service. Any officer or other employee of the Service, who shall make public in any manner whatever any information in violation of this subsection, shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned not more than one year. Based on the City's response, it is unclear how the above referenced statute permits it to redact the email address of the elected official. The City must clarify this matter. Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data

Mayor Nicole LaChapelle SPR18/1174 Page 5 August 21, 2018 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). Second clause ofE xemption (c) - privacy Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption ( c) is applicable to this determination. 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 also Doe .. dispufosarid~reputafion:Td. aI292ri. D; see 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. Citing to the PETA decision, the City claims "Mr. Hardy's request seeks records that contain the names, addresses, phone numbers, and email addresses of the participant of the SPIRIT program, the identity of whom are not supposed to be public based upon directives from the Department of Justice [(DOJ)]. Ifredactions are not made the identity of the participants could be discerned from information provided." The City indicates that "[t]he redacted information pertains potentially to both home and business addresses of both public and private officials as the anonymity of all participants in the SPIRIT program is vital to its success." The City contends that "[t]he names, addresses, telephone and email addresses may be available from other sources, but not under the control of the City. The City has experienced recent turmoil over alleged allegations of discrimination, harassment and hate activity at the City's high school over

Mayor Nicole LaChapelle SPR18/1174 Page 6 August 21, 2018 the past year and disclosing the participants of the SPIRIT program would subject them to potential risk to their personal safety for participating in the program." Although the City claims "[t]he names, addresses, telephone and email addresses may be available from other sources, but not under the control of the City," it is unclear how the elected City official's public domain email address is not under the control of the City. Additionally, I find the City has not demonstrated that the elected City official's email address is an intimate detail of highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. See id. at 292. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the City is ordered to provide Mr. Hardy 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. Murray Supervisor of Records cc: Wesley Hardy