Olufunmilola Shelly v. Framingham, City of - City Clerk (SPR 20220314)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2022 SPR22/0314 Carly Premo Melo Director of Technology Services City of Framingham 150 Concord Street Framingham, MA 01702 Dear Ms. Premo Melo: I have received the petition of Olufunmilola Shelly 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 28, 2022, Ms. Shelly requested, “the letter of recommendation written by [a named individual]…on behalf of [another named individual] and dated September 7, 2021.” The City provided a response on February 8, 2022. Unsatisfied with the City’s response, Ms. Shelly petitioned this office and this appeal, SPR22/0314, 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 agency or municipality 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. The City’s February 8th Response On February 8, 2022, the City withheld responsive records pursuant to Exemption (c) of 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

Carly Premo Melo SPR22/0314 Page 2 February 14, 2022 the Public Records Law. Exemption (c) Exemption (c) applies to: 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). 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). 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. 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. 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). When analyzing a privacy claim, there is 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. Current Appeal On February 8, 2022, the City stated: The document you requested is confidential personnel information, exempt from disclosure under [E]xemption (c) of G.L. c. 4, s. 7, cl. 26. Such records are

Carly Premo Melo SPR22/0314 Page 3 February 14, 2022 shielded from disclosure by Wakefield Teacher’s Ass’n v. School Comm. of Wakefield, 431 Mass. 792, 798 (2000). Accordingly, compiling a response to your request will require a careful review of these documents and segregation/ redaction of exempt information within the invoices by counsel. You have a right to appeal this response to the Supervisor of Public Records pursuant to G.L. c. 66, s. 10A(a) or by filing an action in Superior Court pursuant to G.L. c. 66, s. 10A(c). On February 8, 2022, Ms. Shelly stated: You have denied a request because you would have to redact personal information from a 1-2 page document. Because of this - we are appealing this denial. Additionally we do not concur that a letter of recommendation by a supervisor to leave a city role is in fact protected. Based on the City’s response, it is unclear how the letter of recommendation contains intimate details of a highly personal nature and how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the City did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. As a result, I find that the City did not satisfy its burden in withholding these records pursuant to Exemption (c). Order Accordingly, the City is ordered to provide Ms. Shelly 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, ' ,. , .. · - - ~ - - - . Rebecca S. Murray Supervisor of Records cc: Olufunmilola Shelly