Patricia Mark v. Tisbury, Town of - Town Clerk (SPR 20182069)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 7, 2019 SPRlS/2069 Hillary Conklin Town of Tisbury-Town Clerk 51 Spring Street P. 0. Box 1239 Vineyard Haven, MA 02568 Dear Ms. Conklin: I have received the petition of Patricia Mark appealing the response of the Town of Tisbury (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on November 19, 2018, Ms. Mark requested the following records: 1. "Complaint filed against Patricia Mark, former Administrative Secretary to the Tisbury Police Department by Lieutenant Eerik Meisner." 2. "Report by Chief Arthur Parker (ret) of Billingsgate Associates LLC of Wellfleet, MA, that conducted the investigation pertaining to Lieutenant Eerik Meisner' s complaint both written and digital recorded." 3. "All email correspondence and documentation between any Tisbury employee and Chief Arthur Parker pertaining to the complaint by Lieutenant Eerik Meisner." Previous appeal The requested record was the subject of a previous appeal. See SPRl 8/1990 Determination of the Supervisor of Records (December 17, 2018). I closed SPR18/1990 based on the Town's provision of a response on December 14, 2018. Unsatisfied with the Town's response, Ms. Mark petitioned this office and this appeal, SPR18/2069, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 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

Hillary Conklin SPR18/2069 Page2 January 7, 2019 (1976). Accordingly, Ms. Mark's purpose in making the request has no bearing on the public status of any existing responsive records. 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); 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town's December 14'h request In its December 14, 2018 request, the Town indicates that records responsive to requests 1 and 3 cannot be provided because they are exempt from disclosure under Exemption (c ) of the Public Records Law. The Town also indicates that it has no records responsive to request 2. 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 ofE xemption (c) - personnel 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

Hillary Conklin SPR18/2069 Page 3 January 7, 2019 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 Publishing Co. v. Register of Probate for Norfolk County, 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). Citing Wakefield, the Town states that "[a]ny 'personnel information' contained in the requested records is ... exempt from disclosure." Second clause ofE xemption (c) - 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).

Hillary Conklin SPR18/2069 Page4 January 7, 2019 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. Under the second clause of Exemption ( c ), with respect to the balancing test set out under the clause, the Town indicates that "[t]o the extent that a document contains unresolved allegations regarding a particular person, release of the requested document may implicate the privacy rights of the individuals mentioned therein. Release of the allegations prior to disposition can result in innuendo and speculation as to the subject's reputation and professional competence. Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 290 n.18 (1979)." Accordingly, the Town states that" ... in cases where a resolution of allegations has not occurred, the person at issue has a privacy interest in such allegations, and the nature of the allegations may be considered an intimate detail [o f a] highly personal nature. See (right against unreasonable invasion or personal privacy); see, e.g., Letter Determination of the Supervisor of Public Records, SPR84/222 (Mar. 6, 1985)." Burden of Specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. The Town did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § IO(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Consequently, the Town must identify any records, categories of records or portions of records it is withholding under Exemption ( c ). With respect to the first clause of Exemption (c), based on the Town's response, I find the Town has not met its burden to establish that the responsive records constitute one of the core categories of personnel information, such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under the personnel clause of Exemption (c). See Worcester, 58 Mass. App. Ct. at 5; Wakefield, 431 Mass. at 798. With respect to the second clause of Exemption (c), although the Town has indicated that the privacy interest of an individual in unresolved allegations outweighs the public's interest in

Hillary Conklin SPR18/2069 Page 5 January 7, 2019 disclosure, I find the Town has not demonstrated that the requested records contain intimate details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has it addressed the availability of such information from other sources. See PETA, 477 Mass. at 292. Please note that although the Town cites G. L. c. 214, §lB to support its position to withhold responsive records, this statute does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding ofrecords responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587,595 (2005) (explaining G. L. c. 214, § lB provides no alternative legal basis to resist inspection ofrequested materials). Further, I find the Town did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein, 378 Mass. at 289-90 (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, § lO(a). The Town must explain why segregable portions cannot be disclosed. No duty to create records Under the Public Records Law, the Town is not required to create a list ofrecords or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Whereas the Town explains it does not possess records responsive to the second request, I find that Ms. Mark's appeal pertaining to that request has been resolved. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Town did not meet its burden to explain how an exemption applies to withhold the records in their entirety, accordingly the Town is ordered to review the responsive records, redact where necessary and provide Ms. Mark with requested records, in a manner consistent with this order, the Public Records Law, and its Regulations 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. The Town may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Hillary Conklin SPR18/2069 Page 6 January 7, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Patricia Mark