Peter Blandino v. Rockland, Town of - Town Clerk (SPR 20231165)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2023 SPR23/1165 Lisa Landy Town Clerk Town of Rockland 242 Union Street Rockland, MA 02370 Dear Ms. Landry: I have received the petition of Peter Blandino, of the Patriot Ledger, appealing the response of the Town of Rockland (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 31, 2023, Mr. Blandino requested, “… any complaints, written or emailed, communicated to the town by [identified] restaurant, its owner or representatives, about the Board of Health, or any employees of the Board of Health.” In a separate request, on January 30, 2023, Mr. Blandino requested, “[any] health code citations issued by the Rockland Board of Health to [identified] restaurant in the month of January, 2023.” Prior Appeals and In camera Review This request was the subject of previous appeals and a subsequent in camera review. See SPR23/0412 Determination of the Supervisor of Records (March 16, 2023) and SPR23/0649 Determinations of the Supervisor of Records (April 18, 2023 and May 15, 2023). In my May 15th determination, I found that the Town had not met its burden to withhold the respoisve record in its entirety under Exemption (c) of the Public Records Law. The Town provided a further response on May 30, 2023. Unsatisfied with the Town’s response, Mr. Blandino petitioned this office and this appeal, SPR23/1165, 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

Lisa Landy SPR23/1165 Page 2 June 13, 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. The Town’s May 30th Response In its May 30, 2023 response, the Town cited Exemption (c) to withhold the requested record in its entirety. 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. 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 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).

Lisa Landy SPR23/1165 Page 3 June 13, 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. In its response, the Town advised, “... the Town’s position is that said email complaint regarding [a named person] may be withheld from disclosure pursuant to G.L. c. 4, § 7(26)(c) as it constitutes personnel file information.” The Town further advised, “[t]he email complaint you are seeking details alleged misconduct of a Town employee by a complainant. The Town utilized the email complaint to make employment decisions regarding said Town employee, such as whether discipline was warranted regarding the alleged misconduct specified in the email complaint. Therefore, following the case by case review as discussed in Wakefield above, the email complaint has been useful to the Town in making employment decisions ... and the email complaint may be withheld from disclosure as personnel file information.” The Town also opined, “... personnel file information is absolutely exempt from disclosure and only information that does not allow for the identification of any individual would not be exempt. See id. at 799, 800. As you are well aware that the email complaint pertains to ... (as you have specifically named her in your public records appeal via email on March 2, 2023), it is not possible to provide you portions of the record in a de-identified manner as you are clearly able to identify (and have identified) ... as the subject of the email complaint ...” Despite the Town’s response, I find it has not met its burden to withhold the responsive record, in its entirety, under Exempion (c) of the Public Records Law. Paricularly, the Town has not demonstrated that the responsive record constitutes one of the core categories of personnel information that may be withheld under Exemption (c). Nor, explained how the record contain intimate details of a highly personal nature. PETA, 477 Mass. at 292. Further, based upon the Town’s information, it is unclear whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Order Accordingly, the Town is ordered to review the record, redact where necessary, and provide Mr. Blandino 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.

Lisa Landy SPR23/1165 Page 4 June 13, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Peter Blandino