Scott Merzbach v. Amherst, Town of - Office of the Town Clerk (SPR 20191642)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 26, 2019 SPR19/1642 Susan Audette Town of Amherst Town Hall 4 Boltwood A venue Amherst, MA O1 002 Dear Ms. Audette: I have received the petition of Scott Merzbach of the Daily Hampshire Gazette appealing the response of the Town of Amherst.(Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 24, 2019, Mr. Merzbach requested copies of "all Community Action Forms submitted to the Town since Dec. 1, 2018." Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/1057 Determination of the Supervisor of Records (June 5, 2019). In my June 5th determination, I found that the Town had not met its burden to withhold responsive records, in their entirety, under Exemption (c) of the Public Records Law. Accordingly, I ordered the Town to review the records, redact where necessary and provide Mr. Merzbach with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. The Town provided a response on June 19, 2019, which included responsive records in redacted form. The Town claims the records were redacted pursuant to Exemption ( c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Town's response, Mr. Merzbach petitioned this office and this appeal, SPR19/1642, was opened as a result. Based on his appeal petition, it appears Mr. Merzbach takes issue only with the Town's redaction of applicants' names on the spreadsheet. 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

Susan Audette SPR19/1642 Page 2 August 26, 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tile Town's June 191 response " In its June 19, 2019 response, the Town indicated that it is providing "a pdf spreadsheet containing all but certain redacted information on all Community Action Forms (CAFs) received by the Town since December 1, 2018." The Town explains that "[i]n order to reasonably protect applicant's privacy, their names, telephone numbers, residence and email addresses have been removed, and specific place of employment and similar personal information for applicants has been redacted in accordance with the first and second clauses of Exemption ( c) of the Public Records Law." The Town provided a list of information contained in the spreadsheet that was either provided or paiiially redacted. · 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 ofE xemption (c) - personnel 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

Susan Audette SPR19/1642 Page 3 August 26, 2019 (2000). The comis 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. Fmiher, 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 ofE xemption (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 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 ofMotorVehicles, 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 my June 5th determination, I stated that "[a] general applicant who fails to advance past the initial application stage maintains an undiminished privacy interest in his or her identity, thus, certain information may be withheld pursuant to the second clause of Exemption ( c ).

Susan Audette SPR19/1642 Page 4 August 26, 2019 N01ihampton, 375 Mass. at 132 n.5." I also indicated that" ... once applicants have undergone a preliminary screening, the privacy interests of the individuals selected for further consideration are less substantial than the privacy interests of applicants who do not reach that level of consideration. Id. at 130. An applicant's identity becomes progressively less personal as the individual approaches the final stages of the applicant screening process. Therefore, an applicant who reaches the level of a semi-finalist has become elevated to a greater position of public trust and should expect open and public discussion of his candidacy. Id." See SPR19/1057. Based on the Town's response, it is unclear if the names that were redacted are those of general applicants who failed to advance past the initial application stage. The Town must clarify whether names of finalists have been redacted from the responsive records. Conclusion Accordingly, the Town is ordered to provide Mr. Merzbach 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, ~UIT~ Supervisor of Records cc: Scott Merzbach