Jim Haddadin v. Uxbridge, Town of - Town Clerk (SPR 20191817)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 20, 2019 · SPR19/1817 Kelly Cote Acting Town Manager Town of Uxbridge 21 South Main Street Uxbridge, MA 01569 Dear Ms. Cote: I have received the petition of Jim Haddadin of NBCJO Boston on behalf of Ally Donnelly, also of NBCJO Boston, appealing the response of the Town of Uxbridge (Town) to a · request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 14, 2019, Ms. Donnelly requested the following records: "[ 1] Any written policy for background checks in hiring firefighters ·in Uxbridge for the t,ime period of 2004/2005 [2] Any details on what is included· in the background check [3] Documents including invoices, reports to show a background check was run on [ an identified firefighter] · · · [4] Any emails or notes on conversations between Uxbridge and Douglas fire officials on the hiring of [the identified firefighter]. [SJ Any awards or disciplinary records for [the identified firefighter]." The Town provided a response on August.28, 2019, denying access to responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Town's response, Mr. Haddadin petitioned this office and this appeal, SPR19/1817, was opened as a result. · 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, unles$ 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 .

Kelly Cote SPR19/1817 Page.2 · September 20, 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. The Town's August 281h response . . Requests 1 and 2 In its August 28, 2019 response, with respect to the above requests;the Town indicates that it possesses "a. Application for employment[;] b. ·Uxbridge CORI Policy[;] [and] c. Uxbridge CORIRelease Form." Although the Town identified records in its possession, it is unclear whether the Town intends to withhold responsive records from disclosure or the exemption(s) it is claiming to withhold these records. 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 (1995kFlatley, 419 Mass. at 511. As a result, I find the Town did not meet its burden of demonstrating how the records are exempt from disclosure in their entirety. If the Town maintains the records are exempt from public disclosure, it must cite specific exemptions and the reasons the exemptions apply to withhold the responsive records. Requests 3 and 4 With respect to requests 3 and 4, the Town asserts that these". .. records are not subject to disclosure ..." pursuant to Exemptions (a) and (c) of the Public Records Law. Under Exemption (a), the Town states that "[t]o the extent that these documents may contain information related to criminal history, ..." it asserts Exemption (a) to withhold . responsive records. The Town also references two previous Supervisor of Records dete1minations, SPR14/705 and SPR14/680, which.discussed CORI protected information, to support its position to withhold records from disclosure. · · Under the first clause of Exemption (c ), citing Wakefield and Associated Dry Goods· ~' the Town asserts that "[n]one of the requested documents fall outside of those documents deemed to be 'useful in making employment decisions regarding an employee' or that which is not in 'essence' a personal file. Moreover, none of the information contained therein would be

Kelly Cote SPR19/1817 Page 3 September 20, 2019 located in another type of file." Under the second clause of Exemption (c),·the Town, stating the type·s of information deemed to be protected from disclosure under this clause, asserts that "[d ]ocumentation of emails and notes regarding a perspective [sic] employee's background check contain information which is highly personal including, moral character, criminal history or lack thereof, prior employment history. Thus, this information is protected under the public records law." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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 µnder the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, ~72 Mass. 539, 545-46 (1977). This exemption creates two categ~ries 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 particular 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. The updated definition of CORI reads in pertinent part: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiabte individual and relate to the nature or.disposition of a criminal charge, an a1Test, a pre-trial proceeding, other · judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of se.ction 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative

Kelly Cote SPR19/1817 Page4 September 20, 2019 information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence infonnation. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed py any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which. are not punishable by incarceration. G. L. c. 6, § 167 (emphasis added). 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 Col'p. 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 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). · · 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 tp 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

Kelly Cote SPR19/1817 Page 5 September 20, 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 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 numbe:r). 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. Based on the Town's response, it is unclear what type of.documents it is withholding from disclosure. To deny access to a record under the Public Records Law, arecords access officer, must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Town withheld records without identifying the records. Therefore, the Town must identify the type of record(s) it has in its possession. With respect to Exemption (a), I note that.in referencing the previous Supervisor of Records determinations, the Town included the older definition of the CORI Act in its response. The Town is advised that there has been an update to the definition of CORI as indicated above. As such, it is unclear how the record(s) are exempt under the CORI Act; specifically; it is uncertain how the records pertain to "infonnation recorded in .criminal proceedings that were not dismissed before arraignment," as described above. In light of the updated definition of CORI, I find the Town has not met its burden to withhold responsive records under the CORI Act. With respect to the first clause of Exemption (c), the Town is advised that the term personnel file or information "is not limited to nor does it extend to, all 'files or information' that are located physically in an individual employee's personnel file." Wakefield, 43 1 Mass. at 797 n. 13; see also Globe Newspaper Co., 388 Mass. at 435 (not every bit of information which . might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection); Worcester, 58 Mass. App. Ct. at 5 (personnel file or information in Exemption (c) derives its meaning from the nature or character of the document, not from its

Kelly Cote SPR19/1817 Page 6 September 20, 2019 label or its repository). Therefore, a custodian's designation of materials as personnel file or information is not dispositive.: Worcester, 58 Mass. App. Ct. at 5-6. Consequently, while it appears that portions of the requested records may potentially fall under the first clause of Exemption (c), it remains unclear how all of the document(s) or emails each constitute one of the "core categories of personnel information," such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information. pertaining to a particular employee, which may be properly withheld from disclosure under the first clause of Exemption (c). See id. at 5; Wakefield; 431 Mass. at 798. It is additionally uncertain how these records are useful in making an employment decision(s) regarding an employee. See Wakefield, 431 Mass. at 798. · Further, it is unclear how the documents and email records can be withheld in their entirety. 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 nature). Any non-exempt, segregable· portion o·f a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). With respect to the second clause of Exemption (c), although the Town asserts that "[d]ocumentation of emails and notes regarding a perspective [sic] employee's background check contain information which is highly personal including, moral character, criminal history or lack thereof, prior employment history[,]" I find the Town has not demonstrated how disclosure of the records would result in personal embarrassment to an individual of normal sensibilities nor addressed the availability of such infonnation from other sources. See PETA, 477 Mass. at 292. In addition, the Town did not provide additional information regarding the balancing test set-out in the second clause of Exemption ( c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. See id. at 291-92. Requests 5 In response to request 5, the Town asserts" ... that these documents are protected under the privacy exemption referenced above." Based on the Town's response, I find the Town has not demonstrated that the requested records contain intimate details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has the Town addressed the availability of such information from other sources. See PETA, 4 77 Mass. at 292. In addition, the Town did not provide infonnation regarding the balancing test' set-out in the second clause of Exemption (c) which examines whether the public interestin obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. See id. at 291-92. Conclusion Accordingly, the Town is ordered to provide Mr. Haddadin with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its

Kelly Cote SPR19/1817 . Page 7 September 20, 2019 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, Rebecca S. Murray Supervisor of Records cc: Jim Haddadin