Peter Blandino v. Rockland, Town of - Town Clerk (SPR 20231504)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2023 SPR23/1504 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 prior appeals and a subsequent in camera review. See SPR23/0412 Determination of the Supervisor of Records (March 16, 2023); SPR23/0649 Determinations of the Supervisor of Records (April 18, 2023 and May 15, 2023) and SPR23/1165 Determination of the Supervisor of Records (June 13, 2023). In my June 13th determination, I found that the Town had not demonstrated that the responsive record constitutes one of the core categories of personnel information that may be withheld under Exemption (c). The Town provided a further response on June 28, 2023. Unsatisfied with the Town’s response, Mr. Blandino petitioned this office and this appeal, SPR23/1504, 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, § 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 SPR23/1504 Page 2 July 14, 2023 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. The Town’s June 28th Response In its June 28, 2023 response, the Town cited Exemption (c) of the Public Records Law in support of the redactions. 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

Lisa Landy SPR23/1504 Page 3 July 14, 2023 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). 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 email complaint has been useful to the Town in making employment decisions regarding the Town employee and the email complaint may be withheld from disclosure and/or redacted as personnel file information. As well, the email complaint is also subject to the second clause of G.L. c. 4, § 7(26)(c) as it specifically names both ... and the disclosure of portions of the email complaint may constitute an unwarranted invasion of personal privacy.” The Town also opined, “[i]n applying the balancing test, as portions of the email complaint involve reputation and a personal dispute which occurred over the weekend, it is the Town’s determination that G.L. c. 4, § 7(26)(c) protects portions of the email complaint from disclosure because the public interest in obtaining the requested information does not substantially outweigh the seriousness of the invasion of personal privacy. The requested record is attached with redactions pursuant to the above.” Despite, the Town’s response, I find it has not met its burden to withhold the redacted responsive record 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 response, 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 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 SPR23/1504 Page 4 July 14, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Peter Blandino