James P. Kinsella v. Bourne, Town of (SPR 20200256)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor of Records February 25, 2020 SPR20/0256 Barry Johnson Town of Bourne Office of the Town Clerk 24 Perry A venue Buzzards Bay, MA 02532 Dear Mr. Johnson: I have received the petition of James P. Kinsella of Enterprise Newspapers appealing the response of the Town of Bourne (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically on October 25, 2019, Mr. Kinsella requested "evaluations [a nd] [a ]ny related documents ... of the performance ... of [a] Town [employee] for the 2018-19 fiscal year [and] ... July 1- September 30, 2019." Previous appeals This request was the subject of a previous appeals. See SPRl 9/2368 Determination of the Supervisor of Records (December 5, 2019); SPR20/0032 Determination of the Supervisor of Records (January 10, 2020). The Town responded on January 31, 2020. Mr. Kinsella appealed and SPR20/0256 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, § 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Barry Johnson SPR20/0256 Page 2 February 25, 2020 Current Appeal In its January 3 !51 response, the Town denied access to the records under Exemption (c ) of the Public Records Law and cited two cases: See Wakefield Teachers Association v. School Committee of Wakefield 431 Mass. 792 (2000) and People for the Ethical Treatment of Animals. Inc. (PETA) v. Depaiiment of Agricultural Resources, 477 Mass. 280 (2017). Mr. Kinsella states in his February 1o th appeal to this office, " ... the town's charter mandates an annual review by the board of selectmen of the town administrator's job performance and that the town has made those annual reviews public for at least the past several years, including numerical ratings by individual selectmen of the administrator's performance." 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 unwananted invasion of personal privacy G. L. c. 4, § 7(26)(c) First clause ofE xemption (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 cou1is 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 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). 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. 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

Barry Johnson SPR20/0256 Page 3 February 25, 2020 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). Second clause ofE xemption (c) 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. Inc. (PETA) v. Department of Agricultural Resources, 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, 428 ( 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 292. 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 Town's January 31st response did not contain the specificity required in a denial of access to public records. The Town has not explained how the records are exempt from disclosure in their entirety. Instead, the Town's response simply cites Exemption (c) and case law without any further explanation as to the exemption's applicability to the requested records. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. 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). With respect to the second clause of Exemption ( c ), the Town has neither demonstrated how the records contain intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. Also, the Town has not identified a privacy interest that outweighs the public interest in disclosure. See Id. at 291.

Barry Johnson SPR20/0256 Page 4 February 25, 2020 Conclusion Accordingly, the Town is ordered to provide Ms. Kinsella with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations 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. Sincerely, ~ r r ~ Supervisor of Records cc James Kinsella