Robert Shultz v. Executive Office of Energy and Environmental Affairs (SPR 20190165)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

February 8, 2019 SPR19/0165

Julia O’Leary, Esq.

Counsel

Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900

Boston, MA 02114

Dear Attorney O’ Leary:

I have received the petition of Robert Shultz appealing the response of the Executive Office of Energy and Environmental Affairs (EOEEA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, on December 28, 2018, Mr. Shultz requested certain 526A and 526B forms.

The EOEEFA provided a response on January 14, 2019, indicating that there are no records responsive to request 1, and denying access to records responsive to request 2 pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the EOEEA’s response, Mr. Shultz petitioned this office and this appeal, SPR19/0165, 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, § 10A(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).

Itis the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.MLR. 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.

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

Julia O’ Leary, Esq. SPR19/0165 Page 2

February 8, 2019

If there are any fees associated with a response a written, good faith estimate must be

provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

The EOEEA’s January 14” response

In its January 14, 2019 response, the EOEEA indicates that it has identified one record responsive to request 2. The EOEEA asserts that it is withholding this record “. .. under the personnel exemption (the ‘c’ exemption) to the public records law, M.G.L. c. 4, 87, cl. 26(c). The Supreme Judicial Court has clarified that this exemption ‘creates two categories of records exempt from public disclosure: first ‘personnel and medical files or information’ and second ‘other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.’ Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 796-97 (2000), citing Globe Newspaper Co. v, Boston Retirement Bd., 388 Mass. 427, 434 (1983).” The EOEEA explains that “[s]ince the [qualifying] phrase ‘relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy’ modifies only the second category, . . [i]nformation falling within the ‘personnel and medical files or information’ category is absolutely exempt from disclosure.” Id. at 799-801 .. .; see also Globe Newspaper, 388 Mass. at 438 (‘personnel files or information are absolutely exempt . . . where the files or information are of a personal nature and relate to a particular individual’).”

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 of Exemption (c) — personnel and medical

Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co., 388 Mass. at 432-33. The first clause, relevant to this determination, creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a “personal nature.” Id. at 434. This 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

Julia O’ Leary, Esq. a SPR19/0165 Page 3 February 8, 2019

information pertaining to a particular employee,” may be withheld pursuant to the first clause of Exemption (c). Wakefield, 431 Mass. at 798. 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). Asa 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).

Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Id. at 308; Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co., 404 Mass. at 135.

In his appeal petition, Mr. Shultz included a completed copy of the requested reasonable accommodation request form 526 and the official response form 526B. In light of the fact that Mr. Shultz is in possession of the requested records, it is unclear what the basis of his appeal is. Please note that under G. L. c. 149, § 52C, an employee is permitted to review and receive a copy of his or her personnel records upon submission of a written request to his or her employer. As such, Mr. Shultz may wish to submit a written request for copies of these records from his employer outside of the Public Records Law.

Conclusion

Accordingly, Mr. Shultz may clarify the basis of his appeal.

Sincerely,

Q,Cyeeco Munnar

Rebecca S. Murray Supervisor of Records

cc: Robert Shultz