Joseph Viglione v. Medford, City of - Law Department (SPR 20192081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

October 24, 2019 SPR19/2081

‘Kimberly M. Scanlon, Esq. Assistant City Solicitor City of Medford

85 George P. Hassett Drive Medford, MA 02155

Dear Attorney Scanlon:

I have received the petition of Joseph Viglione appealing the response of the City of Medford .(City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Viglione requested:

1. The document which includes the names of the 27 officers involved in the suspensions and disciplinary action found in a new Patch article;

2. All the documents concerning the investigation of alleged child pornography. See attached disc; and

3. All documents regarding any removal of a varsity coach/teacher at [the City’s] High School, June 30, 2015, who allegedly had an affair with the daughter of a powerful [City] politician.

The City provided an October 9, 2019 response, denying Mr. Viglione’s Request Number 1 pursuant to the first clause of Exemption (c); Request Number 2 under the second clause of Exemption (c); and that the City has no records responsive to Mr. Viglione’s Request 3.

As a result of the City’s October 9" response, Mr. Viglione petitioned the Supervisor of Records (Supervisor), and this appeal was opened.

No responsive records The City informed Mr. Viglione that it has no records responsive to his Request Number

3. Under the Public Records Law, the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the

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

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request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att’y Gen. 157, 165 (May 18, 1977).

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) (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 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. vy. 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).

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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, certain 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).

The City asserts that Mr. Viglione’s request for the document which includes the names of the 27 police officers involved in the suspensions and disciplinary actions is withheld as disciplinary documentation under the personnel clause of Exemption (c). Citing, Wakefield, 431 Mass. at 798. I find the City has not met its burden of specificity in withholding police officer disciplinary records under the first clause of (c).

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 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 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.

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Regarding Mr. Viglione’s Request Number 2, the City claims that the records in its possession pertaining to an investigation of alleged child pornography are exempt under the second clause of (c), the privacy clause. The City did not apply the 3-step test in PETA, which requires a record custodian withholding records under the second clause of Exemption (c) to demonstrate whether disclosure of any of the records would result in personal embarrassment to an individual of normal sensibilities; whether the materials sought contain intimate details of a _ highly personal nature; and whether the same information is available from other sources. See PETA, 477 Mass. at 292. Nor, did the City apply the balancing test of weighing the seriousness of any invasion of privacy versus the public interest in obtaining the records. See id. at 291.

The City’s response also asserts that the privacy exemption exempts “investigatory materials compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” This October 9" response claims to withhold the records under the privacy exemption but also restates the language in Exemption (f). It is unclear whether the City intends to claim both the second clause of Exemption (c) and Exemption (f). The City must clarify what exemptions it is claiming to withhold the records of the investigation pertaining to child pornography.

Burden of specificity; duty to segregate

The City denied Mr. Viglione’s requests without providing the requisite support for its exemption claims in the Public Records Law that would allow the City to withhold the responsive 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, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are 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 nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a).

In addition, the City did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (c) and any other exemption in the Public Records Law. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the. City withheld responsive records without identifying the records. Therefore, the City must identify what type(s) of records it has in its possession that the City withheld.

Conclusion

Accordingly, the City is ordered to provide Mr. Viglione with a response to his requests, in a manner consistent with this order, the Public Records Law and its Regulations within 10

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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,

Ufuree

Keleceo S, Murray Supervisor of Records

ce: Joseph Viglione