Janie Gutierrez Lausier v. Swampscott, Town of - Town Clerk (SPR 20221949)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 8, 2022 SPR22/1949 Jared H. LaLiberte Town Clerk Town of Swampscott 22 Monument Avenue Swampscott, MA 02722 Dear Mr. LaLiberte: I have received the petition of Janie Gutierrez Lausier appealing the response of the Town of Swampscott (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 2, 2022, Ms. Lausier made three separate requests. In her appeal, Ms. Lausier is appealing only the following request, “[a] copy of the Fire Department Entrance Exam results from the test given on 2/5/22 and 2/12/22 including names and numerical scores.” The Town provided a response on August 15, 2022. Unsatisfied with the response, Ms. Lausier petitioned this office and this appeal, SPR22/1949, 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. 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

Jared H. LaLiberte SPR22/1979 Page 2 September 8, 2022 The Town’s August 15th response On August 15, 2022 the Town responded and cited Exemptions (a) and (c) in support of withholding the requested records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Department cited, G. L. c. 93H indicating that the records are exempt from disclosure. G. L. c. 93H provides regulations to safeguard personal information of commonwealth residents. In support, the Department stated, “… the test results sent to the Fire Department include individuals’ social security numbers which are exempt under G.L. c. 93H, as that statute operates pursuant to Exemption (a) of the Public Records Law.” Upon review, I find that social security numbers may be withheld under G. L. c. 93H, as it operates through Exemption (a) of 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

Jared H. LaLiberte SPR22/1979 Page 3 September 8, 2022 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. 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 ass. 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. 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 Town asserted that it “…is the Town’s position that the test score information requested may appropriately be withheld pursuant to Exemption (c). In reaching this conclusion, the Town has carefully considered the application of Exemption (c) to the requested test scores to determine whether disclosure of the information that has been withheld is such that the public’s right to know outweighs any individual’s privacy rights, and considered the factors set forth in the PETA case …” The Town further asserted, “[f]ollowing a careful and diligent review of the test result records requested, which contain individual applicants’ names, social security numbers and individual test scores, the records cannot be provided without implicating the privacy rights of the individual employment applicants, and the Town has concluded that it is appropriate to withhold the test scores requested. Further, after careful review, in this instance, redaction is not possible given that the test score results with personal identifying information would still reveal the ranking of the applicants for the positions even if the scores were redacted. The employment candidates have a privacy interest in their individual test scores, pursuant to Exemption (c) of the Public Records Law. Further, unsuccessful candidates for public employment, not chosen as

Jared H. LaLiberte SPR22/1979 Page 4 September 8, 2022 finalists, have a privacy interest in their candidacies.” With the exception of redacting social security numbers, it is unclear how the requested records are intimate details of a highly personal nature nor 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 Town did not provide sufficient 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. Conclusion Accordingly, the Town is ordered to provide a response to Ms. Lausier made in accordance with the Public Records Law, its Regulations and this order 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, Manza Arthur Supervisor of Records cc: Janie Gutierrez Lausier