Malden News Network v. Malden, City of (SPR 20221701)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 3, 2022 SPR22/1701 Greg Lucey City Clerk City of Malden 215 Pleasant Street Second Floor, Room 220 Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Malden News Network 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 May 19, 2022, the requestor sought the following: [1] Copies of any draft or signed agreements, along with any associated appendices/exhibits etc., related to communications in the May 19, 2022 City of Malden “News Flash” under the title “Mayor Christenson Announces Deal Between Mystic Valley Regional Charter School and Tenants”. . . . [2] Any records citing sources of funds, such as account names or numbers, for any form of financial assistance contributed by the City of Malden to the consummation and terms of these agreements. [3] The document created/posted at the following URL on 5/19/22 (including any document which was changed or deleted from that URL): . . . [4] The document created/posted at the following URL on 5/19/22 . . . [5] Any user manual or recent contract with any vendor providing the “Civic Alerts” posting software. Prior Appeals This request was the subject of prior appeals. See SPR22/1218 Determination of the Supervisor of Records (May 27, 2022) and See SPR22/1497 Determination of the Supervisor of Records (July 14, 2022). I closed SPR22/1497 based on the understanding that the City would provide a supplemental response. The City provided the response to this office on July 11, 2022 and forwarded the response to the requestor on July 18, 2022. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR22/1701, was opened as a 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 SPR22/1701 Page 2 August 3, 2022 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 July 11th response In its July 11, 2022 response, the City provided redacted responsive records. The City stated that the redactions were justified under Exemption (c). 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

Greg Lucey SPR22/1701 Page 3 August 3, 2022 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). 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. In its response, the City stated the following: The city clearly cites exemption (c) as the legal basis for the redactions, noting that the agreements contain information related to specific individuals, the disclosure of which would constitute an unwarranted invasion of personal privacy. As the appellant knows, each of these three agreements provides resolution to a tenant/landlord eviction dispute. As such, the agreements contain extensive personal information related to specific tenants. Among the information contained in these documents is: [1]Personal financial information; [2]Information on rent arrearages and future payment obligations; [3]The amount and terms under which rental and/or relocation assistance will be provided by the landlord; [4]Terms, conditions, and duration of tenancy; [5] Conditions deemed to constitute a default of the tenancy agreement; and [6]Sanctions to be imposed upon default. The City further explained the redactions stating, “[g]iven the widespread dissemination of the property address and the limited number of tenants involved, the mere redaction of tenant names and addresses is inadequate to protect the privacy interests of the individuals involved.”

Greg Lucey SPR22/1701 Page 4 August 3, 2022 In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the City to redact responsive records, the City must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the City’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network Karen Anderson