Dave Rogers v. Newburyport, City of - Office of the City Clerk (SPR 20222391)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2022 SPR22/2391 Richard B. Jones City Clerk City of Newburyport 60 Pleasant Street Newburyport, MA 01950 Dear Mr. Jones: I have received the petition of Dave Rogers, of the Daily News of Newburyport, appealing the response of the City of Newburyport (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 4, 2022, Mr. Rogers requested “a copy of the March 2016 Parks Department Internal Review report[.]” The City responded. Unsatisfied with the City’s response, Mr. Rogers petitioned this office and this appeal, SPR22/2391, 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. 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. 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

Richard B. Jones SPR22/2391 Page 2 November 4, 2022 The City’s Response In its response, the City asserts that it is withholding the responsive records pursuant to Exemptions (c) and (d) of the Public Records Law. G. L. c. 4, § 7(26)(c), (d). 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). 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., 391Mass. 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 particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. 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 Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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. 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).

Richard B. Jones SPR22/2391 Page 3 November 4, 2022 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). Under Exemption (c), the City states: In response to your request, the City has carefully considered the information requested in light of Exemption (c), and considered the factors set forth in the PETA case, cited above. After this careful, individualized review, the City has determined that such statements, which contain unresolved allegations involving City employees, will be withheld at this time pursuant to exemption (c) to protect their reputation interests and redaction is not possible to shield the identities of City employees and officials involved in this ongoing review. Moreover, such personnel information is so inextricably intertwined in the requested record that any meaningful redaction would not be possible. The City has not met its burden to withhold the responsive record pursuant to Exemption (c). Although the City states it may withhold the responsive record under Exemption (c), the City has not sufficiently explained its reasoning. It is unclear how the requested record constitutes one of the core categories of personnel information that could be withheld under Exemption (c). It is additionally uncertain how this information constitutes intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it is not clear from the City’s response, whether this information is available from other sources. The City must clarify these matters. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4,

Richard B. Jones SPR22/2391 Page 4 November 4, 2022 § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Under Exemption (d), the City argues: [It] is also withholding from public release statements and communications sent or received by City officials and employees relative to unresolved personnel matters, pursuant to Exemption (d)….As such, the record requested that is referenced above, is being withheld pursuant to Exemption (d) since it relates to an unresolved matter which is currently under review at this time. The City has not met its burden to withhold the responsive record pursuant to Exemption (d). Although the City states it may withhold the responsive record under Exemption (d), the City has not sufficiently explained its reasoning. It is uncertain how this information constitutes inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the City as required by Exemption (d). Further, any information contained in the responsive records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289- 290 (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). The City must clarify this. Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). Consequently, based on the City’s response, I find the City has not met its burden of specificity in responding to the request, and in denying access to the records under Exemptions (c) and (d). Conclusion Accordingly, the City is ordered to provide Mr. Rogers 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.

Richard B. Jones SPR22/2391 Page 5 November 4, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Dave Rogers