Todd Wallack v. Erving, Town of - Police Department (SPR 20230651)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 18, 2023 SPR23/0651 Bryan Smith Town Administrator 12 East Main Street Town of Erving Erving, MA 01344 Dear Mr. Smith: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Town of Erving (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 20, 2023, Mr. Wallack requested: [1] Resume submitted by [an identified individual] when he was hired by the Erving Police Department[;] [2] Application form filled out by [an identified individual] when he was hired by the Erving Police Department[;] [3] Reference letters for [an identified individual] when he was hired by the Erving Police Department[.] On April 3, 2023, the Town responded and provided a resume that was redacted pursuant to Exemption (o), withheld the employment application in its entirety pursuant to Exemptions (a) and (c), and stated there were no records responsive to Request # 3. Unsatisfied with the Town’s response, Mr. Wallack petitioned this office and this appeal, SPR23/0651, 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). 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

Bryan Smith SPR23/0651 Page 2 April 18, 2023 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. The Town’s April 3rd Response In its April 3, 2023 response, the Town cites Exemptions (a) and (c) to withhold the employment application in its entirety. 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 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.

Bryan Smith SPR23/0651 Page 3 April 18, 2023 G. L. c. 214, § 1B, The Privacy Statute In its April 3rd response, the Town cites G. L. c. 214, § 1B, known as the Privacy Statute, which provides: A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § 1B. This statute does not specifically, nor by implication, exempt any particular records from disclosure; therefore, this statute does not operate under Exemption (a) for the withholding of records or information responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). Therefore, this statute does not allow for the withholding of the requested record. 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). 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). 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:

Bryan Smith SPR23/0651 Page 4 April 18, 2023 (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). 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 Town asserts that, “as the Supreme Judicial Court’s decision in [Wakefield] makes clear, employment applications like the one you have requested that was filled out by [an identified individual] are personnel records exempt from disclosure under the Public Records Law.” The Town states that, “the Massachusetts Personnel Records law, M.G.L. c. 149, § 52C defines the term ‘personnel record’ in relevant part as follows…the job application of the employee….” Current Appeal In his appeal, Mr. Wallack asserts: [T]he Legislature significantly revised [E]xemption (c) in 2020 and the Supervisor of Records has found that the current wording of the statute requires custodians to balance the public interest in disclosure with the privacy interests of the employee. In this case, the office left a previous job after being accused of misconduct, so there is a significant public interest in what he disclosed when he applied for his new position. Based on the Town’s response, it is uncertain how the record contains intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, it is not clear whether any of the information is available from other sources. PETA, 477 Mass. at 292. Further, the Town 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 Town must also clarify whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (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). Conclusion Accordingly, the Town is ordered to provide Mr. Wallack with a response to his 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 the response to this office at pre@sec.state.ma.us.

Bryan Smith SPR23/0651 Page 5 April 18, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack Corey F. Higgins, Esq.