Vicki Bejma v. Mansfield, Town of - Town Clerk (SPR 20221543)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 20, 2022 SPR22/1543 Kevin Dumas Town Manager Town of Mansfield 6 Park Row Mansfield, MA 02048 Dear Mr. Dumas: I have received the petition of Attorney Vicki J. Bejma, on behalf of Triboro Massachusetts News Media Inc., appealing the response of the Town of Mansfield (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 21, 2022, David Linton, of The Sun Chronicle, requested “copies of any and all written and/or electronic correspondence made by [the Town Manager], any staff member of [his] department and the select board regarding the employment of [the] Police Chief . . . including personnel records, his start date, current contract, salary, disciplinary actions and current employment status.” On May 17, 2022, following subsequent correspondence with the Town, Attorney Bejma narrowed the scope of part of the request. Previous Appeals This request was the subject of previous appeals. See SPR22/0827 Determination of the Supervisor of Records (April 25, 2022) and SPR22/1418 Determination of the Supervisor of Records (June 29, 2022). In my June 29th determination, I closed SPR22/1418 in light of the Town’s June 28, 2022 response to Attorney Bejma’s narrowed request. In its June 28th response, the Town cites Exemption (c) of the Public Records Law for withholding a responsive report, and provides a fee estimate for producing responsive emails. Unsatisfied with the Town’s response, and objecting to the fees, Attorney Bejma appealed, and this case 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 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

Kevin Dumas SPR22/1543 Page 2 July 20, 2022 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. Att’y 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. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s June 28th Response In its June 28, 2022 response, the Town provides a fee estimate for producing certain responsive emails, and cites Exemption (c) of the Public Records Law for withholding a responsive report.

Kevin Dumas SPR22/1543 Page 3 July 20, 2022 G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In this case, Attorney Bejma submitted a narrowed request to the Town on May 17, 2022. In an email to this office and Attorney Bejma on June 17, 2022, an attorney for the Town indicates that they “deleted Attorney Bejma’s email of May 17 inadvertently.” Subsequently, the Town provided a fee estimate on June 28, 2022. Where Attorney Bejma submitted the narrowed request on May 17, 2022, and the Town did not provide a fee estimate until June 28, 2022, I find that the Town’s June 28th response was not in compliance with G. L. c. 66, § 10(e). Accordingly, the Town may not charge a fee for public records under G. L. c. 66, § 10(e). 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 135 (1987). 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). When analyzing a privacy claim, there is a balancing test which provides that where the

Kevin Dumas SPR22/1543 Page 4 July 20, 2022 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. Under Exemption (c), the Town states that it is withholding “the Matthews & Matthews report” in its entirety, and argues the following: The Town’s position is that the report is exempt from disclosure. . . . The Mathews & Mathews report relates to a personnel/human resources investigation which does not involve any criminal allegations or allegations of misuse of police powers. This is not a case of a citizen complaint against a police officer(s) which resulted in an internal affairs investigation into police misconduct. Therefore, the report constitutes a personnel record which is exempt from disclosure under current case law. Further, the content of the report implicates medical privacy concerns and the report itself may ultimately be part of a medical record. Finally, releasing the report would also constitute an unwarranted invasion of privacy under the cited exemption. Where the responsive report appears to concern the conduct of a law enforcement officer, it is unclear how Exemption (c) could apply to withhold the report in its entirety. The Department must explain whether segregable portions of the report can be provided. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Town is ordered to provide Attorney Bejma with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Vicki J. Bejma, Esq. Daniel C. Brown, Esq.