Deborah Butler v. Framingham, City of - Mayor's Office (SPR 20182033)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 2, 2019 SPRlS/2033 Michele Conway Records Access Officer City of Framingham - Mayor's Office 150 Concord Street, Room B-37 Framingham, MA 01702 Dear Ms. Conway: I have received the petition of Deborah Butler appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on June 19, 2018, Ms. Butler requested "[a]ll applications/emails/ letters/submissions submitted to date for appointment to the Veterans Council." Previous appeals The requested record was the subject of previous appeals. See SPRl 8/1179 Determination of the Supervisor of Records (August 23, 2018); SPR18/1363 Determination of the Supervisor of Records (September 25, 2018); and SPR18/1624 Determination of the Supervisor of Records (November 20, 2018) (September 25th and November 20th determinations). In my November 20th determination, I found that the City had not met its burden to withhold responsive records regarding the four applications under Exemption ( c) of the Public Records Law. Accordingly, I ordered the City to review the records, redact where necessary, and provide Ms. Butler with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the November 20th determination, the City provided a response on December 10, 2018, which included certain responsive records. Unsatisfied with the City's response, Ms. Butler petitioned this office and this appeal, SPR18/2033, 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 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

Michele Conway SPR18/2033 Page2 January 2, 2019 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); 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. 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. Current appeal In her petition for appeal, Ms. Butler claims the records provided "[do] not contain the (4) four applications (redacted) ... " In its previous responses, the City had claimed the second clause of Exemption (c) to withhold responsive records from disclosure. G. L. c. 4, § 7(26)(c). 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). Second clause ofE xemption (c) - privacy 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

Michele Conway SPR18/2033 Page 3 January 2, 2019 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. Subsequent to the opening of this appeal, this was office was notified that the City provided a response dated January 2, 2018, which included 3 redacted applcations that had not been previously provided to Ms. Butler. Conclusion Accordingly, whereas this matter was opened based upon the City's failure to provide the remaning responsive records, I will now consider this administrative appeal closed. Ms. Butler may appeal the substantive nature of the City's response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Deborah Butler Christopher L. Brown, Esq.