Leo Mard v. Shrewsbury Contributory Retirement System (SPR 20230506)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 29, 2023 SPR23/0506 Gregory Gatsogiannis Executive Director Records Access Officer 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. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/0239 Determination of the Supervisor (February 22, 2023). In my February 22nd determination, I found that the Retirement System did not meet its burden of specificity in claiming Exemption (c) to withhold the requested information. Subsequently, the Retirement System provided a response on March 8, 2023. Unsatisfied with the response, Mr. Mard petitioned this office and this appeal, SPR23/0506, was opened as a result. 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 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 SPR23/0506 Page 2 March 29, 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). The Retirement System’s March 8th response In its March 8, 2023 response, the Retirement System denied the request under Exemptions (a) and (c) of the public Records Law. 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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

Gregory Gatsogiannis SPR23/0506 Page 3 March 29, 2023 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. Under Exemption (a), the Retirement System states that, “. . . disclosure of the names of individuals who have been retired due to accidental disability is . . . exempt from disclosure under [Exemption (a)] (records specifically or by necessary implication exempted from disclosure by statute), specifically, the Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C. § 12101, 12112(d)(3)(B) and its regulations at 29 C.F.R. § 1630.14. With limited exceptions not applicable here, information obtained regarding the medical condition or history of an employee must be maintained in a separate medical file and is treated as a confidential medical file…The ADA’s requirement that employers treat and maintain medical information and records confidentially inherently applies to the name of employees who are qualified individuals under the ADA…” 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). 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).

Gregory Gatsogiannis SPR23/0506 Page 4 March 29, 2023 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 Retirement System asserts, “[w]hen the balancing test is applied and the [factors in PETA] are considered with respect to [Mr. Mard’s] request, the privacy interest in preventing disclosure outweighs any public interest in obtaining the requested information.” The Retirement Systems response with regard to the three factors in PETA, states: With respect to Factor #1, the fact that an individual ended their career as a first responder due to an accidental disability may result in personal embarrassment to an individual of normal sensibilities. Such a former first responder may wish to keep their accidental disability (a personal injury sustained in the performance of their first responder duties), the incident or circumstances causing their disability, and the negative impact on their career as a first responder, private to avoid personal embarrassment among friends, employers, and the community. With respect to Factor #2, the fact that an individual has a disability is an intimate detail of a highly personal nature as it specifically relates to an individual’s medical condition. A high number of disabilities that may lead to accidental disability retirement may be hidden disabilities, which by nature are highly intimate and personal and not often obvious in a public setting. But even visible disabilities are medical conditions that impact an individual’s private life in a manner that is typically kept private due to its intimate and personal nature. Moreover, the disclosure of the names of police officers and firefighters who have been retired due to an accidental disability themselves constitutes medical information relating to such specifically named individuals, the disclosure of which would constitute an unwarranted invasion of personal privacy. For that reason alone, the names of those individuals are shielded from disclosure under Exemption (c) . . . With respect to Factor #3, the Town is not aware that the information sought is available from any other sources. A survey of accessible public records on the Town website and a Google search did not reveal any records or information that would be responsive to the request. Given that accidental disability retirements involve personnel records and medical records, it is not surprising that this information is not readily available. Although the names and circumstances of accidental disability retirees sometimes become public due to litigation matters or new coverage, such instances are limited to specific individuals and do not render the names of all accidental disability retirees open for public disclosure.

Gregory Gatsogiannis SPR23/0506 Page 5 March 29, 2023 The severe and irrevocable violation of privacy interests for the individual retirees in question outweigh any public interest in the disclosure of the requested information. The public’s right to information about the financial and policy implications of the accidental disability retirement system may be obtained from public budgets and reports on government expenditures without violating the individual privacy interests of retirees. . . . Based on the Retirement System’s response, I find that it has met its burden of specificity under Exemption (c) to withhold the names of firefighters and police officers who retired due to accidental disability. As such, I decline to opine on the Retirement System’s claim under Exemption (a), supporting nondisclosure of the requested information. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Mard is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Leo Mard