Kristen Denehy-Field v. Scituate, Town of - Town Clerk (SPR 20200680)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 6, 2020 SPR20/0680 Kathleen Gardner Town Clerk Town of Scituate 600 Chief Justice Cushing Hwy Scituate, MA 02066 Dear Ms. Gardner: I have received the petition of Kristen Denehy-Field, on behalf of Michael Altieri, Esq., both of Hunton Andrews Kurth LLP, appealing the response of the Town of Scituate (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 9, 2020, Attorney Altieri requested “[a]ny and all Public Records constituting ‘applications for commercial aquaculture in the Briggs Harbor/Bassings Beach area of Scituate, MA.’. . . made or received by the Town of Scituate, and/or any of its political subdivisions (including, but not limited to, the Board of Selectmen, the Shellfish Advisory Committee, the Conservation Commission, the Harbormaster, and/or the Waterways Commission).” On April 16, 2020, the Town provided a response denying access to the responsive records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Town’s response, Ms. Denehy-Field petitioned this office and this appeal, SPR20/0680, 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, 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. 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

Kathleen Gardner SPR20/0680 Page 2 May 6, 2020 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(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 April 16th response In its April 16, 2020 response, the Town asserts that “[t]he materials requested are exempt under the privacy exemption found in G. L. c. 4, §7(26)(c). Pursuant to M.G.L. c. 30A, § 22 (e) paragraph, the materials used in deliberations about employment or appointment of individuals, including applications and supporting materials shall be exempt from disclosure to the public as personnel information. Initial screenings will be conducted in Executive Session. . . .” 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 of Exemption (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 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

Kathleen Gardner SPR20/0680 Page 3 May 6, 2020 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). Second clause of Exemption (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. The Town’s response did not contain the specificity required in a denial of access to public records. The Town claims the responsive records are exempt from disclosure under Exemption (c), then cites a statute that appears to indicate that the records are personnel information. Based on the Town’s response, I find it has neither demonstrated how the requested records, “applications for commercial aquaculture in the Briggs Harbor/Bassings Beach area of Scituate, MA[,]” are exempt from disclosure under the first clause of Exemption (c) nor established how they 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 personnel clause of Exemption (c). See Wakefield, 431 Mass. at 798; Worcester, 58 Mass. App. Ct. at 5.

Kathleen Gardner SPR20/0680 Page 4 May 6, 2020 Also, it is unclear how the records are the type contemplated in the statute referenced in the Town’s response. The Town must explain how the statute applies to withhold the requested records from disclosure. Further, to the extent the Town is claiming the second clause of Exemption (c) to withhold responsive records, I find the Town has not demonstrated how an application for a commercial license contains intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. The Town did not also address whether the information is available from other sources. Additionally, the Town did not provide any 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 PETA at 291-92. Therefore, the Town has not met its burden under the second clause of Exemption (c) to withhold the requested applications from disclosure. As a result, I find the Town has not met its burden of explaining with specificity how the applications, 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Town is ordered to provide Ms. Denehy-Field with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Kristen Denehy-Field