Arthur A. Butler v. Division of Capital Asset Management and Maintenance (SPR 20181598)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 20, 2018 SPR18/1598 Christopher Guerin, Esq. Division of Capital Asset Management and Maintenance One Ashburton Place, 15th Floor Boston, MA 02108 Dear Attorney Guerin: I have received your petition for reconsideration of a previous determination regarding an appeal from Arthur Butler related to a response of the Division of Capital Asset Management and Maintenance (Division) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Butler requested certified payroll records for various subcontractors. The Division responded to his request by providing redacted records and claiming the redacted portions are exempt from disclosure pursuant to Exemptions (a), (c) and (o) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (o). In my previous determination, based on the requirements of G. L. c. 149, § 27B, it was unclear how the addresses redacted from the responsive records may be properly withheld under Exemptions (a), (c) or (o) of the Public Records Law. See SPR18/1598 Determination of the Supervisor of Records (November 15, 2018). I ordered the Division to provide Mr. Butler with a response to his request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. Id. On November 30, 2018, the Division filed a petition for reconsideration with this office and included a supplemental response in support. 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 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

Christopher Guerin, Esq. SPR18/1598 Page 2 December 20, 2018 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Request for reconsideration Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute 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. In its response, the Division cites to G. L. c. 149, § 27B as it pertains to certified payroll records and availability for inspection and copying. The Division asserts that under G. L. c. 149, § 27B, Mr. Butler is not an "interested party" and is "not among the intended parties for which inspection of certified payrolls was granted by the General Court." The Division cites to the 2nd Edition of Black Law Dictionary's definition of "interested party" and other Massachusetts court cases involving the term "interested parties." The Division further asserts that "[t]he General Court included the term interested party intentionally; had they intended any party with a passing interest should have access to the home

Christopher Guerin, Esq. SPR18/1598 Page 3 December 20, 2018 addresses of non-public employees, they would have excluded the term 'interested."' The Division concludes that "[b]ecause G.L. c. 149, §27B expressly limits the availability of the home addresses to interested parties, such information is exempt pursuant to §7(26)(a) absent a demonstration that the Requestor is an 'interested party.'" 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, 432-34 (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, 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. In support of establishing the privacy interest at stake, the Division cites to Exemptions (o) and (p) of the Public Records as evidence that there is a privacy interest in home addresses.

Christopher Guerin, Esq. SPR18/1598 Page4 December 20, 2018 The Division additionally cites to Exemptions (g), G), (q), (r), (s) and (u) of the Public Records Law. The Division asserts that "[t]he expansion of the list of public records exemptions reflect an increasing sensitivity to breaches of privacy and protection of information." With respect to the balancing test and the public interest in release of the home addresses, the Division asserts that based on the PETA case "[t]he public interest therefore is in the capacity of a watchdog." The Division asserts that "the Certified Payroll records, as redacted, provide sufficient information to inform the reader whether [the Division] is functioning efficiently and pursuant to its legal duties." Exemption (o) Exemption ( o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. C. 4, § 7(26)(0). In its response, the Division indicates that "[t]he language of section 7(26)( o) suggests an underlying intent was to help ensure the smooth functioning of the government by shielding the home address of state employees. Contractors are routinely engaged in activities for the Commonwealth, indeed without private contractors, a smooth functioning government would be impossible. Employees of private contractors likewise are no less important to the functioning of the Commonwealth, therefore, by necessary implication, they should enjoy the same protections afforded to their public counterparts." Certified payroll records As mentioned above, G. L. c. 149, § 27B, pertaining to certified payroll records, states in relevant part: Every contractor, subcontractor or public body engaged in said public works by an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth or county, or municipality or any subdivision thereof to which sections twenty-seven and twenty-seven A apply shall keep a

Christopher Guerin, Esq. SPR18/1598 Page 5 December 20, 2018 true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee, and shall submit weekly to the awarding authority by mail, first class postage prepaid, or by electronic mail, certified payroll records that shall consist of a complete copy of those records .... Such records shall be open to inspection by any authorized representative of the department at any reasonable time, and as often as may be necessary ... The above-mentioned copies of payroll records and statements of compliance shall be available for inspection by any interested party filing a written request to the awarding authority for such inspection and copying. G. L. c. 149, § 27B. The statute provides that such records shall be open to inspection by any authorized representative of the Department of Labor and Industries (Department) at any reasonable time, and as often as may be necessary. Id. The statute further provides that copies of payroll records shall be available for inspection and copying by any interested party filing written request to the awarding authority. Id. The statute does not limit disclosure, but rather evidences a legislative intent to make these records available for inspection. Where the language of the statute does not restrict disclosure, the statutory right of citizens to inspect under the Public Records Law prevails. See Attorney General v. Collector of Lynn et al., 377 Mass. 151, 151, 154 (1979) (statute providing that records be available to town officials does not exempt records since statute does not limit disclosure to the public); see also G. L. c. 4, § 7(26)(a) (exempting those records which are specifically or by necessary implication exempt from disclosure by statute). G. L. c. 149, § 27B evidences a legislative intent to make that information which is required to be provided by a contractor to the awarding authority open to public inspection. Further, in a 2002 Superior Court case, a construction company hired for a public construction project for the Massachusetts Water Resources Authority sought injunctive relief by asserting a privacy claim under Exemption ( c) of the Public Records Law to prevent disclosure of the addresses and telephone numbers of the workers listed on the certified payroll records after the Supervisor of Records issued an order to the MWRA to disclose the records to the requesting party. See JD' Amico, Inc., et. al. v. Massachusetts Water Resources Authority, Suffolk Sup. No. 02-0369-A (Nov. 6, 2002). In his April 29, 2002 finding, Judge Thomas Conley denied the plaintiff's motion for a preliminary injunction, stating, "[t]here is very little likelihood, if any, of the plaintiff prevailing in this matter, and there has been no showing of irreparable harm." Id. Given that the addresses of the individuals who are the subjects of the certified payroll records are public, the Division may not withhold this information under G. L. c. 149, § 27B or any of the exemptions enumerated in the Public Records Law.

Christopher Guerin, Esq. SPR18/1598 Page 6 December 20, 2018 Order Accordingly, I find that the Division cannot redact the addresses of the subjects of the certified payroll records, as this information is required under G. L. c. 149, § 27B. See G. L. c 149, § 27B. The Division is ordered to provide Mr. Butler with copies of the certified payroll records with the addresses included and provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any cover letter or response that accompanies the records 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: Arthur Butler