Colman Herman v. Boston Water & Sewer Commission (SPR 20190612)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2019 SPR19/0612 Dolores Randolph Deputy Director of Communications Boston Water & Sewer Commission 980 Harrison A venue Boston, MA 02119 Dear Ms. Randolph: I have received the petition of Colman Herman appealing the response of the Boston Water & Sewer Commission (Commission) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on February 18, 2019, Mr. Herman requested" ... hard copies and electronic copies of any and all invoices submitted by outside law firms to the [Commission] for the period January 1, 2017 to date." Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/517 Determination of the Supervisor of Records (March 20, 2019). In my March 20th determination, I ordered the Commission to provide Mr. Herman with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the March 20th determination, the Commission provided responsive records on March 20, 2019. These records were produced in redacted form. Unsatisfied with the Commission's response, Mr. Herman petitioned this office and this appeal, SPR19/0612, was opened as a result. While this appeal was pending, the Commission provided a supplemental response dated April 5, 2019. 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). 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

Dolores Randolph SPR19/0612 Page 2 April 8, 2019 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, § 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. 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 Commission's April 5th supplemental response In its April 5, 2019 supplemental response, the Commission indicates that it "claims the following exemptions to all redacted information on the responsive records in accordance with G.L. c. 4, sec. 7(26) (c) and (d) of the public records law. This consists of any and all identifying information related to the nature and strategy of the legal services provided." 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 Ethical Treatment of Animals (PETA) v. De!)'t of Agric. Res., 477 Mass. 280,292 (2017).

Dolores Randolph SPR19/0612 Page 3 April 8, 2019 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. Exemption (d ) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, §7 (26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Burden of specificity 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 Commission's April 5th response did not contain the level of specificity required in withholding content from a record or in denying access to records. Instead, the Commission merely cites Exemptions (c) and (d), without any further explanation as to the exemptions'

Dolores Randolph SPR19/0612 Page 4 April 8, 2019 applicability to the redacted portions of the responsive records. With respect to Exemption ( c ), although the Commission claims that the redacted information" ... consists of any and all identifying information related to the nature and strategy of the legal services provided[,]" I find the Commission has neither demonstrated that the. redacted portions are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. Also, the Commission did not provide additional information with respect to the balancing test set out in the second clause of Exemption (c), which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Commission must clarify these issues. With respect to Exemption (d), based on the Commission's response, it is unclear what legal or policy positions these invoices or the redacted portions are related to, or how disclosure would taint the deliberative process. The Commission must clarify this matter. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the Commission is ordered to provide Mr. Herman with a response to the request, provided 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Colman Herman