Brad Petrishen v. Worcester City Clerk (SPR 20181696)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 28, 2018 SPRlS/1696 Joshua Martunas City of Worcester 455 Main Street-Room 309 Worcester, MA 01608 Dear Mr. Martunas: I have received the petition of Brad Petrishen of the Telegram & Gazette appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Petrishen requested "internal affairs documentation" about an identified officer and "information about his work/[pay] status in the city." This request was the subject of a previous appeal. See SPR18/1575 Determination of the Supervisor of Records (November 8, 2018). The City initially responded on July 30, 2018 by indicating it does not possess certain records and denying access to others under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). The City provided a supplemental response on November 8, 2018 that includes additional information about its exemption claims. Mr. Petrishen appealed and SPR18/1696 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) (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 the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (custodian has the 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

Joshua Martunas SPR18/1696 Page 2 November 28, 2018 burden of establishing the applicability of an exemption). Current appeal The City's November 8th response indicates that it" ... has determined that the first clause of exemption ( c) is applicable to the requested records, as the responsive records constitute personnel records. Additionally, the city has determined that the second clause of exemption (c) is also applicable to the requested records." 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 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 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).

Joshua Martunas SPR18/1696 Page 3 November 28, 2018 Second clause 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. The City asserts that "[t]he responsive documents are letters, forms, certifications, and documentation supporting requests for leave. The nature and character of these particular documents is such that they constitute personnel records, exempt pursuant to the first clause of exemption (c)." With respect to the second clause of Exemption (c), you indicate" ... the City has determined the privacy interest associated with the disclosure of the requested records outweighs the public interest in the disclosure." In his appeal petition Mr. Petrishen indicates "[t]he city writes the responsive documents are letters, forms, certifications and documentation supporting requests for leave. While I am interested in obtaining all of those documents that are deemed public, at a minimum I believe the city should have to disclose some sort of payroll records that will show whether [the identified officer] is being paid by taxpayers or not." He also notes "[a]t a bare minimum, I believe the public should be entitled to know [the identified officer's] work status from that date forward, including whether or not he was being paid." He also refers to a July 2018 court order in a United States District Court case. However, it is unclear the extent to which the responsive records are related to this litigation.

Joshua Martunas SPR18/1696 Page 4 November 28, 2018 I find the City has not met its burden to withhold responsive records in their entirety. In particular, it is unclear why the City cannot provide records responsive to Mr. Petrishen's request for "payroll records that will show whether [the identified officer] is being paid by taxpayers or not" or records that show this officer's "work status from that date forward, including whether or not he was being paid." See Brogan, 401 Mass. at 308-09 (finding that along with payroll records, generic classifications related to absenteeism do not fall under Exemption (c)). With respect to the second clause of Exemption ( c) , the City has not established how the privacy interest in the responsive records outweighs the public interest in disclosure under the analysis outlined above in PET A. Conclusion Accordingly, the City is ordered to provide Mr. Petrishen a written response made in accordance with the Public Records Law, its Regulations and this order 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: Brad Petrishen