Justin Piccirillo v. Uxbridge, Town of - Town Clerk (SPR 20182035)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 2, 2019 SPR18/2035 Kelly Cote Town Clerk Uxbridge Town Hall 21 South Main Street Uxbridge, MA 01569 Dear Ms. Cote: I have received the petition of Justin Piccirillo appealing the response of the Town of Uxbridge's Town Clerk (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Piccirillo requested records relating to a separation agreement with the Town and named individual. The Town provided Mr. Piccirillo with a response on December 10, 2018 citing Exemptions (c). Unsatisfied with the Town's response, Mr. Piccirillo appealed the response via email to this office on December 17, 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 d~monstrate 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. G. L. c. 66, § lO(b)(iv). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Ms. Kelly Cote SPR18/2035 Page 2 January 2, 2019 Exemption (c) The Town claims records may be withheld under the second clause of Exemption (c) of the Public Records Law. 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). 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. Tortes 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, 4 77 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. Appeal Mr. Piccirillo believes the Town's response providing a redacted agreement was "not in good faith, and in violation of Chapter 66, Section 10 of general law." In his December 1] 1h appeal, Mr. Piccirillo listed the specific pages "4-6 of the attached Redacted Agreement PDF, the

Ms. Kelly Cote SPR18/2035 Page3 January 2, 2019 header of the document states: Federico Agreement and RELEASE OF CLAIMS," where he questioned the redactions made by the Town. In the Town's December 10th response they explain that "[t]he substantive terms of the separation agreement, apart from the financial payments made, have been redacted pursuant to the privacy exemption, personnel files." The Town must provide a more in-depth explanation of what records are being withheld and how these records are exempt under Exemption (c). The Town must identify the record(s) withheld under each exemption and explain why the exemption applies in the manner described above. See G. L. c. 66, § 1O (b )(iv) (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); See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). The Town is required to cite the exemptions used and provide the specific reasons for such withholding. Order Accordingly, the Town is ordered to review the requests and provide a written response to Mr. Piccirillo, made in accordance with the Public Records Law, its Access Regulations and this order 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Justin Piccirillo