Frank Wood v. Framingham, City of - Mayor's Office (SPR 20211019)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 5, 2021 SPR21/1019 Jennique Horrigan Mayor's Office City of Framingham Memorial Building 150 Concord Street Framingham, MA 01702 Dear Ms. Horrigan: I have received the petition of Frank Wood appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 4, 2021, Mr. Wood requested “all emails sent or received between December 1, 2020 and January 2, 2021” regarding identified individuals. The City provided a response to Mr. Wood on February 9, 2021. Unsatisfied with the City’s response, Mr. Wood petitioned this office and this appeal, SPR21/1019, 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. 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)(viii); 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

Jennique Horrigan, RAO SPR21/1019 Page 2 May 5, 2021 The City’s February 9th response In its February 9, 2021 response, the City indicates that the Mayor’s office has “5 records responsive to this request that are being withheld pursuant to exemption (c) and 1 for exemption (o) as they contain personnel and/or medical information, as well as other data relating to this records request, the disclosure of which may constitute an unwarranted invasion of personal privacy and are exempt from disclosure. G. L. c. 4, § 7(26)(c) and (o).” The City further states that with respect to the Human Resources Department “23 documents responsive documents are being withheld from this response pursuant to either exemption (c) and/or exemption (o) as they contain personnel and/or medical information, as well as other data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy and are exempt from disclosure. G. L. c. 4, § 7(26)(c) and (o).” Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y 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 exemption 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 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).

Jennique Horrigan, RAO SPR21/1019 Page 3 May 5, 2021 This exemption 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. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter l 50E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o). Based on the City’s response, it is unclear what records the City possesses that it is withholding under Exemptions (c) and (o). As a result, I find the City did not satisfy its burden in responding to this records request. The City 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 Regulations. 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). It is also unclear how the records can be withheld in their entirety. Particularly, it is uncertain how non-exempt data is inextricably intertwined with exempt data that records cannot be segregated. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The City must clarify this. Conclusion Accordingly, the City is ordered to provide Mr. Wood 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.

Jennique Horrigan, RAO SPR21/1019 Page 4 May 5, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Wood