Andrew Ryan v. Boston, City of - Public Records (SPR 20220790)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2022 SPR22/0790 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Andrew Ryan, of the Boston Globe, appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 3, 2022, Mr. Ryan requested “[a] spreadsheet showing the city’s current payroll for all city departments (including schools, police, fire, City Hall) as of 1/14/2022 that includes each employee’s name, ID, and date of birth. . . .” Previous appeal This request was the subject of a previous appeal. See SPR22/0790 Determination of the Supervisor of Records (March 15, 2022). I closed SPR22/0790 after the City provided a response on March 23, 2022. Unsatisfied with the City’s response, Mr. Ryan petitioned this office and this appeal, SPR22/0790, 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 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

Shawn A. Williams, Esq. SPR22/0790 Page 2 April 14, 2022 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 March 23rd response In its March 23, 2022 response, the City explains that “. . . it is permitted to withhold the full date of birth of its employees under the ‘privacy exemption’ of the public records law. G. L. c. 4, § 7 (26) (c). Full dates of birth play an important role in identity security, and to create a dataset upon demand of full birth dates for 20,000 people, along with other information such as name, ID, zip code, race, gender, salary, and employment start date could put the identities and personal information of City employees at risk of theft and fraud.” The City posits that “[a]lthough some birthdates are admittedly available in other locations, that is not the case for all employees, and there is an aggregate impact on employee privacy that we must consider when creating a dataset. The City maintains that the public interest in knowing an employee’s full date of birth, as opposed to birth year, does not outweigh the potential risk to the security of that employee’s personal information and identity. Please note that the City is willing to assist you in differentiating between employees should that be necessary, and the City recognizes that the privacy analysis may differ for other potentially targeted requests not presented here.” 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

Shawn A. Williams, Esq. SPR22/0790 Page 3 April 14, 2022 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. The City is advised that, in Boston Globe Media Partners, LLC v. Dep’t of Public Health (DPH), 482 Mass. 427 (2019), the Supreme Judicial Court described additional factors to consider when analyzing privacy issues: (1) the extent to which multiple indices could be compared to reveal private information, (2) the availability from other sources of the information in the requested indices, (3) the risk from disclosure of identity theft or fraud, and (4) the extent to which disclosure could result in unwanted intrusions. DPH, 482 Mass. at 442. In light of the above, I find the City must provide additional information regarding its Exemption (c) claim. Conclusion Accordingly, the City is ordered to provide Mr. Ryan 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: Andrew Ryan