Michael Killeen v. Deerfield, Town of - Town Administrator (SPR 20191740)

William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

September 11, 2019 SPR19/1740

Diana Schindler

Interim Town Administrator Town of Deerfield

8 Conway Street

South Deerfield, MA O 13 73

Dear Ms. Schindler:

I have received the petition of Michael Killeen appealing the response of the Town of Deerfield’s Town Administrator (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Mr. Killeen originally requested a “Memorandum of Agreement and Release of Claims”. This office provided a Determination (see SPR19/1331) based on an in camera review on August 13, 2019. The Town provided a response to Mr. Killeen on August 26, 2019. Mr. Killeen appealed the Town’s response to this office on August 27, 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, § 10A(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, § 10(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. G. L. c. 66, § 10(b)(iv).

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c, 66, § 10(b)(viti); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

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

Ms, Diana Schindler SPR19/1740 Page 2 September 11, 2019

Exemption (c)

The Town redacted portions of responsive records under Exemption (c) of the Public Records Law.

_ 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

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, relevant to this determination, creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a “personal nature.” Id. at 434, Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure, Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 Mass, at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132,

135 (1987). While it is generally held that one’s right to privacy is extinguished at death, an individual’s privacy interest in his or her medical information survives death. See id. at 134.

Second clause

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

Ms. Diana Schindler SPR19/1740 Page 3 , September 11, 2019

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.

The Public Records Law states that “the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass, 852, 857 (1995); Flatley, 419 Mass, at 511. The Town’s response did not contain the specificity required in a denial of access to public records. Instead, the Town’s August 26" response states “[t]o specifically identify which of the categories of documents listed on page 34 of that decision would apply to each redacted portion of the agreement would defeat the purpose of claiming those exemptions. However, in my capacity as Town Counsel, [the Town] contacted the Public Records Division and verbally identified the applicable exemption for each provision.” The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, the Town has not established how the withheld information is exempt under Exemption (c), The Town is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations,

Conclusion

Accordingly, the Town is ordered to review the request and provide a written response to Mr. Killeen, made in accordance with the Public Records Law, its Access Regulations and this order 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.

Sincer Alcea.

teacea S. Murray Supervisor of Records

cc: Michael Killeen