Mary Whitfill v. Rockland, Town of (SPR 20191302)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murra}' Supervisor of Records July 15,2019 SPR19/1302 Christopher J. Kenny, Esq. Clifford & Kenny, LLP 31 Schoosett Street; Suite 405 Pembroke, MA 02359 Dear Attorney Kenny: I have received the petition of Mary Whitfill of The Patriot Ledger appealing the response of the Town of Rockland (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Whitfill requested a copy of the most recent report pertaining to an investigation relating to alleged misconduct of two identified persons. In a June 27, 2019 response on.behalf of the Town as its Legal Counsel, you informed Ms. Whitfill, "[t]he records you have requested are materials that relate to specifically named individual(s), the disclosure of which may constitute an unwarranted invasion of personal privacy. Specifically, such materials involve intimate details of a highly personal natme and such privacy interest outweighs the public interest in disclosure. Therefore, the records you have requested are exempt from disclosure pmsuant to G. L. c. 4, § 7(26)(c). As a result, Ms. Whitfill petitioned the Supervisor of Records (Supervisor) and this appeal was opened. The Public Records Lmv The Public Records Law strongly favors disclosme 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) (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 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

Christopher J. Kenny, Esq. SPR19/1302 Page 2 July 15, 2019 exemption or exemptions upon which the withholding is based ... "); 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). Exemption (c) Exemption ( c) applies to: 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. 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 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 ofrecords 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 Publ'g Co. v. Register of Probate for Norfolk Cnty., 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, ce1iain 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). Second clause of (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

Christopher J. Kenny, Esq. SPR19/1302 Page 3 July 15, 2019 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 natme; 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. It is unclear from the Town's June 2i 11 response whether it has denied the request for the report under both clauses of Exemption ( c) or solely under the second clause of Exemption ( c ). The Town did not meet its burden of supporting the withholding of the record in its entirety. A Public Records Division staff attorney contacted you regarding the request and administrative appeal by Ms. Whitfill. B11rde11 ofs pecificity; duty to segregate The Town denied Ms. Whitfill's request, in its entirety, under Exemption (c) of the Public Records Law without supporting the withholding of the responsive investigation report. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 ( 1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the responsive report, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in natme). The Town must produce any non-exempt, segregable portions of the responsive report. G. L. c. 66, § lO(a).

Christopher J. Kenny, Esq. SPR19/1302 Page 4 July 15, 2019 Co11clusio11 Accordingly, the Town is ordered to provide Mr. Whitfill with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within I 0 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: Mary Whitfill Christine Campanile, Office of the Town Clerk