Amy Friedman v. Malden, City of (SPR 20211184)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 25, 2021 SPR21/1184 Greg Lucey City Clerk City of Malden 110 Pleasant Street, First Floor Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Bruce Friedman appealing the response of the City of Malden (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 24, 2020, Mr. Friedman requested “. . . the entire contents of [an identified individual’s] public employee file including but not limited to his letter of resignation.” Previous appeals The requested records were the subject of previous appeals. See SPR20/1629 Determination of the Supervisor of Records (September 22, 2020); SPR20/1797 Determination of the Supervisor of Records (October 8, 2020); and SPR20/2492 Determination of the Supervisor of Records (December 30, 2020). In my December 30th determination, I found the City had not met its burden to withhold certain responsive records, in their entirety, under Exemption (c) of the Public Records Law. Accordingly, I ordered the City to provide Mr. Friedman with a response. Subsequently, the City provided a response on May 10, 2021. Unsatisfied with the City’s response, Mr. Friedman petitioned this office and this appeal, SPR21/1184, 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). 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

Greg Lucey SPR21/1184 Page 2 May 25, 2021 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. 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 City’s May 10th response In its May 10, 2021 response, citing the Wakefield decision, the City asserts “[a]ll of the records contained in his personnel file, except for his contract – his application, resume and the onboarding forms - are the documents that are critical in making employment decisions as they were necessary for his hire. . . . The application, is necessary to make employment decisions, the same way that a resume is. Furthermore, the onboarding forms are necessary to make employment decisions as they are a prerequisite to being hired. An employee must fill them out to start employment. As such, these records are not subject to redaction, as ‘core categories of personnel information’ and may be withheld in their entirety. Wakefield, 431 Mass. at 799. . . .” 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 Prop. 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).

Greg Lucey SPR21/1184 Page 3 May 25, 2021 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 D-oe v. Re-gistrar of- Motor V-ehicles, 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 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. In my December 30th determination, I stated the following: “. . . I find it is unclear how the W4 form and direct deposit form constitute one of the core categories of personnel information that are useful in making employment decisions regarding an employee. Particularly, the City has not differentiated how these records are not payroll records. The City must clarify this matter.” Where the City has not complied with the December 30th determination, I find it has not met its burden in responding to this request. Order Accordingly, the City is ordered to provide Mr. Friedman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, Rebecca S. Murray Supervisor of Records cc: Bruce Friedman