Edward Miller v. Wellfleet, Town of - Town Clerk (SPR 20191073)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 11, 2019 SPR19/1073 Daniel R. Hoort Town Administrator Town of Wellfleet 300 Main Street Wellfleet, MA 02667 Dear Mr. Hoort: I have received the petition of Edward Miller of the Provincetown Banner appealing the response of the Town of Wellfleet (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Miller requested "[t]he name of the person who has offered a donation of $1 million for the purchase of the HD YL TA Realty Trust shellfish flats, and any written correspondence, by mail, email, or otherwise, between this person, or his or her representatives, and any agent of the town of Wellfleet." The Town responded on May 24, 2019 by declining to provide the requested name under Exemption (c) of the Public Records Law. G. L. C. 4, § 7(26)(c). 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, § IOA( 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 af 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. 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

Daniel R. Hoort SPR19/1073 Page 2 June 11, 2019 Appeal 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). 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. 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). 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. In the Town's May 24th response you indicate "I will not be releasing the donor's name as they have requested anonymity. I am doing so under the provisions of Massachusetts General Law Chapter 4, Sec. 7, cl. 26 (c) which prohibits the disclosure of 'any other materials or data

Daniel R. Hoort SPR19/1073 Page 3 June 11, 2019 relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.[']" In his appeal petition Mr. Miller indicates" ... the identity of an unnamed person whose financial involvement in a major municipal land purchase is exerting a substantial influence on a matter of public policy with significant tax implications for the town should clearly be a matter of public record. Revealing that person's identity would in no way expose him or her to defamatory or otherwise damaging publicity. Therefore, the question of invasion of privacy is not relevant to the request for public information that has been properly made in this case." A government agency may not make private an otherwise public document merely by entering into an agreement to keep its terms confidential. Washington Post Co. v. Department of Health and Human Services, 690 F.2d 252,263 (D.C. Cir. 1982); see also Galvin v. Mass. Mut. Life Ins. Co., 20 Mass. L. Rep. 533, 28 (2006). If such were the case, any government employee could unilaterally frustrate the purpose of the Public Records Law with a rubber stamp. See Washington Post Co., 690 F.2d at 263 (government agency cannot circumvent the Federal Freedom oflnformation Act with a private agreement). Further, the Superior Court in Massachusetts has opined on the issue of disclosing the name of an anonymous donor under the Public Records Law. The court found that "[t]he public's interest in governmental oversight ... substantially outweighs the relatively slight privacy interest at issue;" therefore, the court ruled that the name of an anonymous donor could not be withheld under Exemption (c). See Douglas White v. Rebecca Murray, No. 1783CV00912, at 12 (Plymouth Sup. Ct. Aug. 7, 2018). In light of the above, I find the Town has not met its burden to withhold the requested name under Exemption ( c). Conclusion Accordingly, the Town is ordered to provide Mr. Miller with a response to the request, 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. Sincerely, Supervisor of Records cc: Edward Miller Janelle Austin, Esq.