Allison Jarmanning v. Boston, City of - Public Library (SPR 20181245)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 31, 2018 SPR18/1245 Shawn Williams, Esq. Director of Public Records City of Boston - Public Library 1C ity Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Allison Jarmanning appealing the response of the Boston Public Library (Library) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on August 2, 2018, Ms. Jarmanning requested "[a]ny records detailing why three facilities managers are on leave [and] [a]ny police reports in the possession of the library, including those filed between June 1, 2018 and present." The Library provided a response which included certain records but denied access to other records pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). Unsatisfied with the Library's response, Ms. Jarmanning petitioned this office and this appeal, SPR18/I245, 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 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 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

Shawn Williams, Esq. SPR18/1245 Page 2 August 31, 2018 provided. G. L. c. 66, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Library's August 16th response In its August 16, 2018 response, the Library provided the police reports in its possession but denied access to records responsive to"[a ]ny records detailing why three facilities managers are on leave" pursuant to Exemptions (c) and (f) 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, 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).

Shawn Williams, Esq. SPR18/1245 Page 3 August 31, 2018 Under the first clause of Exemption (c) the Library claims, "[t]he records responsive to [Ms. Jarmanning's] request contain information that identifies the persons currently on administrative leave from the Library; those persons are all the subject of an ongoing investigation. The names of those persons appear on the records created by the Library for the purposes of the investigation." The Library further asserts that because" ... the information will be useful in making a personnel decision regarding those persons identified[,]" the records are exempt from disclosure. 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 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, 4 77 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. Under the second clause of Exemption (c), the Library asserts that "[d]isclosure of the identities of those persons undergoing investigation prior to the conclusion of the investigation would constitute an unwarranted invasion and subject those persons to unfavorable scrutiny, reflecting on the personal reputation of each person."

Shawn Williams, Esq. SPR18/1245 Page 4 August 31, 2018 Exemption (I) Exemption (t) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G .. L. C. 4, §7 (26)(±). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (t) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Under its Exemption (t) claim, the Library asserts that the records are" ... exempt from disclosure ... as any portion of these records would identify those library staff members currently under investigation .... Disclosure of the identity of the persons subject to this investigation would be harmful to the investigative efforts of the Library and the Boston Police Department [(Department)] during the pendency of the investigation." The Library further notes that although "information regarding public employees on administrative leave may be considered public, particularly if such disclosure fails to identify information regarding those persons that is part of ongoing investigations or would place the character of those persons unfavorably. In this instance, however, the only records responsive are those of the persons subject to an ongoing investigation that is known to the public." As such, the Library contends that "[d]isclosure of the identity of these persons at this time would be harmful to investigative efforts, would impede the ability of the Library to make personnel and investigative decisions, and would by aggregation disclose unwarranted details regarding each of the identified persons." Burden ofs pecificity; 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, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality

Shawn Williams, Esq. SPR18/1245 Page 5 August 31, 2018 intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. The Library did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemptions (c) and (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Library withheld responsive records without identifying what records it has in its possession, custody and control that are responsive to the request for "records detailing why three facilities managers are on leave." Therefore, the Library must identify what type of record(s) it has in its possession that it is withholding under Exemptions (c) and (f). With respect to the first clause of Exemption ( c ), although the Library claims "the information will be useful in making a personnel decision regarding those persons identified," I find the Library has not demonstrated that the requested records each 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 the first clause of Exemption (c). See Worcester, 58 Mass. App. Ct. at 5; Wakefield, 43 1 Mass. at 798. Similarly, with respect to the second clause of Exemption (c), although the Library claims that disclosure of the identities of the individuals undergoing investigation "would constitute an unwarranted invasion and subject those persons to unfavorable scrutiny, reflecting on the personal reputation of each person[,]" considering the PETA analysis, I find the Library has not demonstrated that the records contain intimate details of a highly personal nature nor addressed the availability of such information from other sources. In addition, with respect to the balancing test set-out under the second clause of Exemption ( c ), I find the Library has not demonstrated that the privacy interests that these individuals may have substantially outweighs the significant public interest in obtaining the requested information. With respect to Exemption (f), based on the Library's response, I find the Library has not demonstrated how disclosure of the identities of these individuals "would be harmful to the investigative efforts of the Library and the [Department]. ..." The Library has also not demonstrated that the records contain confidential investigative techniques that are so unique to the Library or Department such that disclosure "would so probably prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" under Exemption (f). Furthermore, the Library did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Library must

Shawn Williams, Esq. SPR18/1245 Page 6 August 31, 2018 produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Given that the Library did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Library is ordered to review the records, redact where necessary, and provide Ms. Jarmanning 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 Library may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Allison Jarmanning