Leo Mard v. Shrewsbury Contributory Retirement System (SPR 20230239)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 22, 2023 SPR23/0239 Gregory Gatsogiannis Executive Director Shrewsbury Contributory Retirement System 100 Maple Avenue Shrewsbury, MA 01545 Dear Mr. Gatsogiannis: I have received the petition of Leo Mard appealing the response of the Shrewsbury Contributory Retirement System (Retirement System) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2023, Mr. Mard requested the names of firefighters and police officers employed by the Town of Shrewsbury who retired on accidental disability as of June 30, 2022. The Retirement System provided a response on January 27, 2023, denying the request in its entirety under Exemption (c) of the Public Records Law. On February 2, 2023, Mr. Mard petitioned the Supervisor of Records, and this appeal was opened. In his petition, Mr. Mard asserts, “[a] couple [of] people that I know who have retired on accidental disability have never had anyone from the retirement office or the retirement board reached out to them over the years to see how they may be doing, or if anything may be done for them, maybe need a ride, or have something picked up for them, etc. My goal was to establish a group or me to check in on those…” Status of the requestor; reason for the request Mr. Mard is advised, the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Mard’s interest in obtaining the requested information shall have no bearing on the public nature of the 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

Gregory Gatsogiannis SPR23/0239 Page 2 February 22, 2023 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) (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…”); 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). 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. 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 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).

Gregory Gatsogiannis SPR23/0239 Page 3 February 22, 2023 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 Retirement System’s January 27th response In a January 27, 2023 response to Mr. Mard, the Retirement System asserted, “[we are] in receipt of your request for the names of those individuals retired from the Police and Fire Departments on Accidental Disabilities as of June 30, 2022. We are withholding those records and denying your request under Exemption (c) of the Massachusetts Public Records Law . . .” The Retirement System’s response did not contain the specificity required in a denial of access to public records under Exemption (c). See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is unclear how the information constitutes an intimate detail of a highly personal nature. It is additionally uncertain how disclosure would result in personal embarrassment to an individual of normal sensibilities or whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Retirement System did not provide additional 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. The Retirement System must clarify these matters. Conclusion Accordingly, the Retirement System is ordered to provide Mr. Mard with a response to his request 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 the response to this office at pre@sec.state.ma.us.

Gregory Gatsogiannis SPR23/0239 Page 4 February 22, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Leo Mard