Joel Lemos v. Department of Correction - Division of Human Resources (SPR 20182083)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 8, 2019 SPRlS/2083 Patricia Snow Department of Correction - Division of Human Resources 1 Industries Drive P.O. Box 946 Norfolk, MA 02056 Dear Patricia Snow: I have received the petition of Joel Lemos appealing the response of the Department of Correction - Division of Human Resources (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Lemos requested the following categories of records: 1. The number of MCI-Norfolk employees who have been fired for misconduct. This should include security staff to contract staff; 2. Any and all information in regard to [an identified individual] findings of misconduct and/or reprimands for criminal acts; and 3. [An identified individual], misconduct or reprimands in regard to criminal conduct. Previous Appeal This appeal is the subject of previous cases. See SPR18/509 Determination of the Supervisor of Records (May 1, 2018) and SPR18/1315 Determination of the Supervisor of Records (September 13, 2018). I closed SPR18/1315 by ordering the Department to provide Mr. Lemos with a response to his request, provided in a manner consistent with the order, the Public Records Law and its Regulations within 10 business days. It is my understanding that the Department provided Mr. Lemos a supplemental response in a letter dated October 26, 2018. Unsatisfied with this response, Mr. Lemos petitioned this office and as a result SPRl 8/2083 was opened. 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

Patricia Snow SPR18/2083 Page 2 January 8, 2019 Current Appeal In letter to Mr. Lemos dated October 26th you state, "[t]he Department responded to your request Number 1. This letter constitutes the Department's further response to your correspondence dated August 25, 2018 (and subsequent appeal) in which you requested copies of the following records [concerning categories 2 & 3)." In the letter, the Department states "it does not maintain a separate disciplinary file for its employees. Disciplinary records are maintained within each employee's personal folder. Within the [identified] individual's personnel folder, the Department holds on potentially responsive record from 2012; however the records is exempt under the Public Records Law. G. L. c.4, §7(26)(c)." The Department further notes it is denying Mr. Lemos' request for these materials "because they are not only a part of [the identified individual's] personnel file, but the release of these materials would also constitute an unwarranted invasion of [their] personal privacy." The Department reiterated these points when addressing category 3 of Mr. Lemos' request. 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). 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. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have 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). 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.

Patricia Snow SPR18/2083 Page 3 January 8, 2019 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. Burden of specificity; segregable portions The Department's October 26th response merely states the records in question constitute an unwarranted invasion of personal privacy. The Department cites Exemption ( c) for denial of the requested record(s) without specifically explaining how disclosure of responsive records "may constitute an unwarranted invasion of personal privacy" as required by Exemption ( c ). G. L. c. 66, § lO(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. As a result, the Department has not met its burden to withhold responsive records in their entirety. See G. L. c. 66, § IO(a) (any non-exempt, segregable portion of a public record is subject to mandatory disclosure). Conclusion Given that the Department did not meet its burden to explain how Exemption (c ) permits it to withhold the records, the Department is ordered to review the records, redact where necessary, and provide Ms. Lemos with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, - ~ Rebecca S. Murray Supervisor of Records cc: Joel Lemos