Matthew Rocheleau v. Boston, City of - Fire Department (SPR 20181205)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 23, 2018 SPRlS/1205 Connie S. Wong City of Boston - Fire Department 115 Southampton Street Boston, MA 02118 Dear Ms. Wong: I have received the petition of Matthew Rocheleau appealing the response of the Boston Fire Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rocheleau requested the following records in two separate requests. 1. "Any/all lists/spreadsheets/documents of all BFD employees who were suspended/ placed on involuntary leave since Jan. 1, 2017, showing their names, titles, date suspension began and ended, and reason for suspension." 2. "Any/all documents/reports/spreadsheets showing the final disposition/ruling/ penalty/recommendation for any/all complaints from Jan. 1, 2017 through Dec. 31, 2017. For the purposes of this request, we are not asking for the full case files." The Department provided a response on June 24, 2018, which included redacted records pertaining to request 1 and denied access to records responsive to request 2. The Department claims Exemption (c) of the Public Records Law permits it to redact and withhold the records. G. L. c. 4, § 7(26)(c). Unsatisfied with the Department's response, Mr. Rocheleau petitioned this office and this appeal, SPRl 8/1205, was opened as a result. Petitions to the Supervisor of Records Mr. Rocheleau is reminded that when appealing to the Supervisor of Records, the requestor "shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses ... and a complete copy of all responses associated with requests subject to the petition for appeal ... "950 C.M.R. 32.08(1)(g). 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

Connie S. Wong SPR18/1205 Page 2 August 23, 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 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, § lO(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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's June 2l" response In its June 24, 2018 response, the Department indicates that it withheld certain records pursuant to Exemption ( c) of the Public Records Law. Exemption (c) Exemption ( c) permits the withholding of: 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). First clause ofE xemption (c) - personnel 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,

Connie S. Wong SPR18/1205 Page 3 August 23, 2018 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 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 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). Second clause ofE xemption (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.

Connie S. Wong SPR18/1205 Page4 August 23, 2018 Request 1 In its June 24, 2018 response, the Department indicates "[t]he names and titles of Department employees suspended are exempt under the first and second clause of the privacy exemption to the public records law, as they consist of personnel records, and contain intimate details of a highly personal nature. MGL c. 4, § 7(26)(c ). Redacted records are provided in the Google Drive link. All records responsive to Request #4 are provided and no records were withheld other than the redactions noted above." Based on the Department's response, I find the Department has not demonstrated that the names and titles of the suspended employees constitute one of the "core categories of personnel information," such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under Exemption ( c ). Additionally, although the Department claims the records "contain intimate details of a highly personal nature," I find the Department has not demonstrated that the names and titles of suspended employees are "intimate details of a highly personal nature." Further, the Department has not demonstrated that disclosure of the names and titles of the suspended employees would result in personal embarrassment to an individual of normal sensibilities nor addressed the availability of such information from other sources. Also, the Department must provide additional information regarding the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. Id. at 291-92. Request 2 With respect to request 2, the Department claims Mr. Rocheleau' s request is "denied under the first and second clause of the privacy exemption, as the responsive records contain personnel information and contains intimate details of a highly personal nature. MGL c. 4, § 7(26)(c) .... [T]o the extent the request seeks disciplinary information, that information, in redacted form, is already disclosed under Response #4." Based on the Department's response, it is unclear what types of records the Department has in its possession that are responsive to request 2. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 CMR 32.06(3)(c)(4). Therefore, the Department must identify the type of record(s) it has in its possession that it withheld. As described above, the Department must explain how each of the reports or documents constitute one of the "core categories of personnel information," which may be properly withheld from disclosure under Exemption ( c ).

Connie S. Wong SPR18/1205 Page 5 August 23, 2018 Similarly, although the Department claims the records" ... contain intimate details of a highly personal nature," considering the PETA analysis, I find the Department has not demonstrated that disclosure of the records or any segregable portion therefore would constitute an unwarranted invasion of personal privacy. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). The Department must also provide additional information regarding the balancing test set-out in the second clause of Exemption (c). See PETA, 477 Mass. at 291-92. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to withhold responsive records, accordingly the Department is ordered to provide Mr. Rocheleau with responsive records, 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~ a y ~ Supervisor of Records cc: Matthew Rocheleau