Karen Kim v. Andover, Town of - Town Clerk (SPR 20211832)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 23, 2021 SPR21/1832 Austin Simko Town Clerk/Records Access Officer Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Mr. Simko: I have received the petition of Karen Kim appealing the response of the Town of Andover (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 16, 2021, Ms. Kim requested “. . . a copy of the full and unredacted investigative report on [named individual] which was cited as the cause of his firing . . .” and “. . . any responses to the investigative report made by [named individual].” Previous appeal; in camera review This request was the subject of a previous appeal and subsequent in camera inspection. See SPR21/1374 Determinations of the Supervisor of Records (June 15, 2021; July 8, 2021). In my July 8th determination, I found the Town had not met its burden to withhold the report, in its entirety, under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Subsequently, the Town provided a response on July 22, 2021, including responsive records in redacted form. Unsatisfied with the Town’s response, Ms. Kim petitioned this office and this appeal, SPR21/1832, 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. 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

Austin Simko SPR21/1832 Page 2 August 23, 2021 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. The Town’s July 22nd response In its July 22, 2021 response, the Town enclosed redacted records. The Town had previously claimed Exemption (c) to withhold the responsive records from disclosure. The Town explained in its May 28, 2021 response that “[t]he report details [the named employee’s] conduct in providing outreach services to troubled AYS program participants and families in his capacity as AYS Director. Those services involve individuals who, for example, may be experiencing family difficulties or mental health issues. The report and exhibits contain extensive and specific information regarding identified persons that fall within this exemption.” Citing PETA, the Town asserted “. . . the information in this report easily meets the three-factor test that (1) ‘disclosure would result in personal embarrassment to an individual of normal sensibilities,’ that (2) ‘the materials sought contain intimate details of a highly personal nature,’ and that (3) the same information is not available from other, public sources. Id. . . .” 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. 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 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 Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013).

Austin Simko SPR21/1832 Page 3 August 23, 2021 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). 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. Based on the in camera review of responsive records, coupled with the production of records in redacted form, I find the Town has met its burden to redact portions of the records under Exemption (c). See Globe Newspaper Co., 388 Mass. at 438 (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Kim is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Karen Kim