James P. Kinsella v. Bourne, Town of (SPR 20181498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 24, 2018 SPRlS/1498 Barry H. Johnson Town Clerk/Records Access Officer Town of Bourne Town Hall --------- 2-tterry Avenue, Roorrrtfil Buzzards Bay, MA 02532 --- -- --- --- --Dear Mr. Johnson:- --- I have received the petition of James Kinsella of the Bourne Enterprise appealing the response of the Town of Bourne (Town) to a request for public records. Specifically, Mr. Kinsella requested a copy of records pertaining to an investigation of an identified employee involving the 2018 transfer of a firefighter from the Town's Fire Department to the Town of Easton' s Fire Department. Prior appeal - SPRJ 8/875 The responsive records were the subject of a prior appeal. See Determination of the Supervisor of Records (Supervisor) (June 27, 2018). The Town provided June 13, 2018 and June 26, 2018 responses to withhold the records in their entirety under Exemptions (b) and ( c) of the Public Records Law. In a June 26th response, the Town's Legal Counsel, Robert S. Troy of Troy Wall Associates, states to withhold the records in their entirety under both clauses of Exemption ( c ), "[s ] ince the request squarely asks for documents that the statute specifically exempts, it is respectfully suggested that this Appeal should be denied and the Decision of the Records Access Officer, Town Clerk Barry H. Johnson be upheld." As a result, and given that the Town did not provide the specificity required in withholding the records, in their entirety, I ordered the Town to review the responsive records, redact where necessary and provide Mr. Kinsella with the requested records, in a manner consistent with my June 2in order, the Public Records Law and its Regulations within 10 business days. See G. L. c. 66, § 1O (b )(iv). The Town did not provide Mr. Kinsella with the responsive records, and as a result, Mr. Kinsella petitioned the Supervisor and this appeal was opened. 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

Barry H. Johnson SPR18/1498 Page2 October 24, 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, § 1O A( 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, § IO(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 ... "); 950 C.M.R. 32.06(3); see also Dist. Attorney for tlreNorfoirDist. v. Flatley, 4t~Mass~5~5trft995) (custodiarrfarrthe burden of establishing the applicability of an exemption). ---·· -Exemption (b) The Town's June 13th response indicated that the Town is withholding the responsive records in their entirety pursuant to Exemption (b) of the Public Records Law. Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, Provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. C. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of information Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United

Barry H. Johnson SPR18/1498 Page 3 October 24, 2018 States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In Massachusetts, the records access officer must demonstrate that the information is not only related solely to internal rules or practices, but also that the proper performance of necessary government functions will be inhibited by disclosure. The Town's June 13th response has not demonstrated how disclosure of any of the records responsive to Mr. Kinsella' s request, in part or in whole, would compromise the workings of the Town's Fire Department or the Town itself. I find that the Town has not met its burden of demonstrating how the records are exempt from disclosure under Exemption (b) in their entirety. Exemption (c) Exemption (c) applies to: persomieland medical files or information;-als6-any -otlier 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). First clause of (c) -personnel and medical 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). Courts have concluded that "personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature." Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). Within the context of the first clause of Exemption (c), the Supreme Judicial Court has determined that records are "personal" if they

Barry H. Johnson SPR18/1498 Page 4 October 24, 2018 pertain to a particular individual. Wakefield, 431 Mass. at 799. It is my understanding that the records are personal in nature because they pertain to the identified employee. 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 Cnty., 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). The Town has not demonstrateath:arattthe responsive records constitute a core category of records useful in making an employment decision, such as disciplinary, demotion or termination information pertaining to the identified employee. See Worcester, 58 Mass. App. Ct. .... at 5. therefore, the Town has not met its burden ofspecificity in claiming that the records may be withheld as personnel information under the first clause of Exemption ( c ). Second clause of (c) - privacy The Town's June 26111 response also asserts that the employee should be afforded the protection the statute gives to the employee's personal 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

Barry H. Johnson SPR18/1498 Page 5 October 24, 2018 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. The Town has not demonstrated how the second clause of Exemption (c) applies to withhold the entirety or portions of the records responsive to Mr. Kinsella's request. In addition, the Town has not applied the balancing test in PETA . Therefore, I find that the Town has not met its burden of specificity in claiming the second clause of Exemption ( c) to withhold the records in their entirety. In camera inspection In order to analyze the legal basis of the Town's position, it is the finding of this office ~wofmrun:redacted copy of the responsive 1ec01ds would facilitate a final determination as to the applicability of any exemption claims made by the Town. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to your and cusfody issue -anopiniorioiithep-uolic orexempfriature-oftli6iecorcl. - - -- - -- - The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of the responsive records, without delay. The Town may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence

Barry H. Johnson SPRIS/1498 Page 6 October 24, 2018 would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: James Kinsella Robert S. Troy, Esq.