Amy Leonard v. Hingham, Town of - Town Administrator (SPR 20181386)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 2, 2018 SPR18/1386 Thomas Mayo Town Administrator Town of Hingham 210 Central Street Hingham, MA 02043 Dear Mr. Mayo: I have received the petition of Amy Leonard of 95. 6 FM WATD News appealing the response of the Town of Hingham (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 6, 2018, Ms. Leonard requested "[a] less redacted copy of the settlement agreement in the amount of $86,500 that was issued to a Town employee since this information has already been released to another news outlet." Previous appeals This request was the subject of two previous appeals. See SPR18/1169 Determination of the Supervisor of Records (August 21, 2018); SPR18/896 Determination of the Supervisor of Records (July 2, 2018). In my August 21st determination, I found that with respect to the Town's Exemption (a) claim, it was unclear how the claimed act, statute and Town policy permit withholding of the redacted portions and it was uncertain how the redacted portions fall within a type of information that is specifically or by implication exempt by statute. Specifically, it is unclear what type of information is being redacted and how any of the cited statutes exempt that type of information. With respect to its Exemption ( c) claim, I found that it was uncertain which clause of Exemption (c) the Town is claiming and how either clause permits withholding of the redacted portions. I closed SPRl 8/1169 by ordering the Town to provide Ms. Leonard with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The Town provided a response on September 17, 2018. Unsatisfied with the Town's response, Ms. Leonard petitioned this office and this appeal, SPR18/1386, was opened as a result. 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

Thomas Mayo SPR18/1386 Page 2 October 2, 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. The Town's September 1 fh response ih In the Town's September 1 response, it indicates that it "provided [Ms. Leonard] with the portion of the agreement that specifies the dollar amount included in the agreement. By doing this [the Town] believe[s] [it has] complied with the public records law. The redactions were largely made to protect the identity of the employee/individual. Based on the nature of this case [the Town] believe[s] redacting any identifying information serves to protect the individual's privacy and accordingly are proper under the law. For [Ms. Leonard's] information, after [the Town] redacted the document the employee/individual with whom the agreement was made was given an opportunity to review the redactions. The employee/individual requested several additional redactions based on the belief that many people reading the document would still be able to identify the employee/individual. Out of respect for the goal of respecting the employee's/individual's privacy rights we made the additional redactions." The Town additionally states that "in [Ms. Leonard's] appeal [she] indicate[s] that a media outlet received a less redacted version of the document from the Town. To the best of [the Town's] knowledge [the Town] only [has] one redacted version of the agreement and that version has been provided to each media outlet that has requested a copy. If [Ms. Leonard] would identify the media outlet that has indicated that it possess' a less redacted version [the Town] will absolutely look into it and let [Ms. Leonard] know if in fact more information was released to a different outlet." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute

Thomas Mayo SPR18/1386 Page 3 October 2, 2018 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 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. Despite the Town's September 1] 1h response, it remains unclear how the act, statute and Town policy claimed in its August 211 response permit withholding of the redacted portions and d uncertain whether the redacted portions fall within a type of information that is specifically or by implication exempt by statute pursuant to Exemption (a). Specifically, it is unclear what type of information is being redacted and how any of the cited statutes exempt that type of information. The Town is reminded that Exemption (a) applies to statutes and regulations with statutory authority; therefore, the Town has not demonstrated how a Town policy may be utilized through Exemption (a). See G. L. c. 4, § 7(26)(a). As such, the Town has not met its burden to withhold the redacted portions pursuant to Exemption (a). 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). 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

Thomas Mayo SPR18/1386 Page 4 October 2, 2018 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). 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.

Thomas Mayo SPR18/1386 Page 5 October 2, 2018 ih Despite the Town's September 1 response, it remains uncertain whether the Town is claiming the first or the second clause of Exemption (c). I find the Town has not met its burden to demonstrate how the redacted portions may be withheld under the first or second clause of Exemption (c). The Town is advised that under the first clause of Exemption (c), it has not established whether the redacted information constitutes one of the "core categories of personnel information" or how the redacted information would be "useful in making employment decisions" as discussed above. See Worcester, 58 Mass. App. Ct. 1, 5. The Town is advised that under the second clause of Exemption (c ), it has not demonstrated consideration of the factors listed above in assessing the weight of the privacy interest at stake, and it has not established whether the redacted information is of the type the second clause is designed to protect. See PETA, 477 Mass. 280, 292-292 n.13. Additionally, based on Ms. Leonard's and the Town's communication about a less redacted version having been provided to another media outlet, it is unclear whether any of the redacted information is available from other sources. See id. at 292. As such, the Town has not met its burden to withhold the redacted portions pursuant to Exemption (c). Conclusion Given that the Town has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Town is ordered to review the records, redact where necessary, and provide Ms. Leonard with responsive records, provide'd 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 Town may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murr~ Supervisor of Records cc: Amy Leonard