Andrew Quemere v. Norfolk District Attorney's Office (SPR 20191524)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 14, 2019 SPR19/1524 Laura A. McLaughlin, Esq. Assistant District Attorney Norfolk County District Attorney's Office 45 Shawmut Road Canton, MA 02021 Dear Attorney McLaughlin: I have received the petition of Andrew Quemere appealing the response of the Norfolk County District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on July 7, 2019 Mr. Quemere requested a contract with the creator of an identified video. Previous appeal This request was the subject of a previous appeal. See SPRl 9/1434 Determination of the Supervisor of Records (July 30, 2019). In my July 30th determination I closed the appeal in light of the DAO's July 18th supplemental response that provided additional information regarding its exemption claims. Mr. Quemere appealed the July 18th response and SPR19/1524 was opened as a result. Tlte 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). 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 One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Laura A. McLaughlin, Esq. SPR19/1524 Page 2 August 14, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal The DAO initially resp,pnded on July 18, 2019 by providing a copy of the record with portions redacted under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26); G. L. c. 149, § 52C. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Comi, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of paiiicular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 149, § 52C provides in pertinent paii: ... all of the following written information or documents to the extent prepared by an employer of twenty or more employees regarding an employee shall be included in the personnel record for that employee: the name, address, date of bitih, job title and description; rate of pay and any other compensation paid to the employee; staiiing date of employment; the job application of the employee; resumes or other forms of employment inquiry ....

Laura A. McLaughlin, Esq. SPR19/1524 Page 3 August 14, 2019 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). 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 pe1iaining 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 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). 111 In its July 18 response the DAO indicates "[p] lease note certain redactions were made pursuant to: the statutory exemption for G.L. c. 4, § 7 (26) (c) (personnel files and personal identifying information may constitute an unwarranted invasion of personal privacy); G.L. c. 149, § 52C ('all of the following written information or documents to the extent prepared by an employer of twenty or more employees regarding an employee shall be included in the personnel record for that employee: the name, address, date of birth, job title and description; rate of pay and any other compensation paid to the employee; starting date of employment; the job application of the employee; resumes or other forms of employment inquiry .... '); DaRosa v. New Bedford, 4 71 Mass. 446, 462 (2015) (public records exemptions apply to an outside consultant temporarily hired by the government); Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass, 792, 798 (2000); see also A Guide to the Massachusetts Public Records Law, available at p. 15 www.sec.state.ma.us/pre/prepdf/guide.pdf (' [P]ersonnel information that is useful in making employment decisions regarding an employee is sufficiently personal to be exempt')." The DAO provided additional information about its exemptions claims that same day; specifically, you indicated "[t]o clarify my previous response: an employee contract is a personnel file that contains personal identifying information. The Commonwealth provided you the contract but made minor redactions of the following personal identifying information pursuant to G.L. c. 4, §7 (26) (c) and G.L. c. 149, §52C: the contract employee's home address,

Laura A. McLaughlin, Esq. SPR19/1524 Page 4 August 14, 2019 personal cell phone, personal email address, contract identifying code number, and contracted compensation." In his appeal petition Mr. Quemere asse1is "I still object to the DAO's response. First, the DAO has redacted the amount of compensation paid to a private contractor; this is an improper redaction. Furthermore, the DAO's description of its redactions is incomplete; for instance, the signatures of the people who signed the contract appear to be[] redacted. The DAO must specify all material which has been redacted and provide reasons for the redactions." Despite its July 18th response, I find it is unclear how an exemption applies to each redaction within the responsive record. See G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or pmiions 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 ... "). In camera inspection In order to facilitate a determination as to the applicability of the DAO's exemption claims, the DAO must provide this office with un-redacted copies of the records at issue for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returneq to the custodian. To operate in any other fashion would seriously impede our ability to function and would ce1iainly affect our credibility within the legal community.

Laura A. McLaughlin, Esq. SPR19/1524 Page 5 August 14, 2019 Order Accordingly, the DAO.is ordered to provide this office with un-redacted copies of the records at issue for in camera inspection without delay. The DAO may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Andrew Quemere .