Laura Crimaldi v. Boston Water & Sewer Commission (SPR 20181329)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 17, 2018 SPR18/1329 Dolores Randolph Deputy Director of Communications Boston Water and Sewer Commission 980 Harrison A venue Boston, MA 02119 Dear Ms. Randolph: I have received the petition of Laura Crimaldi of the Boston Globe appealing the response of the Boston Water and Sewer Commission (Commission) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Crimaldi requested the following records: • records that reflect the employment status of Boston Water and Sewer Commission employees Henry Vitale, Phil Smith, Brian Lee, and Richard Sullivan; • records that reflect internal complaints BWSC employees made about racial and gender discrimination from 2012 to present, including the date of the complaint, details of the allegations, the findings of any investigation, the names of the parties in involved, and what, if any, action was taken; • records that reflect antibias and harassment training materials used by the comm1ss10n; • any invoices for antibias and harassment training services used by BWSC. The Commission responded on August 20, 2018 by providing certain responsive records but denying others under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). 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). 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

Dolores Randolph SPR18/1329 Page2 September 17 , 2018 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. Appeal In its August 20th response the Commission provided records responsive to the request for "[r]ecords that reflect-anti-bias and harassment training materials used by the Commission" as well as the request for "[a]ny invoices for anti-bias and harassment training services used by BWSC." However, with respect to Ms. Crimaldi's request for "[r]ecords that reflect the employment status of Boston Water and Sewer Commission employees Henry Vitale, Phil Smith, Brian Lee, and Richard Sullivan," the Commission asserts "[t]he information requested contains personal and private information of Commission employees the disclosure of which may constituted an unwarranted invasion of personal privacy. As such, the requested records showing employment status are exempt from disclosure pursuant to M.G.L. c. 66, M.G.L. c. 4, sec.7 (26)." The Commission also denied access to Ms. Crimaldi's request for "[r]ecords that reflect internal complaints BWSC employees made about racial and gender discrimination from 2012 to present, including the date of the complaint, details of the allegations, the findings of any investigation the names of the parties involved, and what, if any, action was taken." Specifically, you indicate "[t]he information requested contains personal and private information of Commission employees. In accordance with M.G.L. c. 66, M.G.L. c. 4, sec.7 (26) Exemption (c) of the Massachusetts Public Records Law, specifically exempts material or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." In her appeal petition Ms. Crimaldi indicates that the Commission "denied my request for records pertaining to the employee status of several individuals, citing exemption ( c ). The records I seek shouldn't be considered privileged since the employees work for a public agency and the commission should disclose whether they remain employed." She also asserts that with respect to records regarding internal complaints, "[t]he commission should be able to disclose records pertaining to such complaints under the condition that the names of individuals involved are redacted." Exemption (c) Exemption ( c) permits the withholding of:

Dolores Randolph SPR18/1329 Page 3 September 17, 2018 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). 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 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 ifrelating to an individual's official responsibilities. See Brogan 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.

Dolores Randolph SPR18/1329 Page 4 September 17, 2018 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. Burden ofs pecificity; segregable portions With respect to the withheld records, it is not clear which responsive records the Commission possesses. 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 ... "). Further, under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Commission did not meet its burden of demonstrating how the records are exempt in their entirety 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). Conclusion Given that the Commission did not meet its burden to explain how an exemption applies to the records, the Commission is ordered to review the responsive records, redact where necessary, and provide Ms. Crimaldi responsive records in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Laura Crimaldi