Sean Canty v. Boston Water & Sewer Commission (SPR 20232562)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 8, 2023 SPR23/2562 Brigid Wright, Esq. Senior Assistant General Counsel Records Access Officer Boston Water and Sewer Commission 980 Harrison Avenue Boston, Massachusetts 02119 Dear Attorney Wright: I have received the petition of Sean Canty appealing the response of the Boston Water and Sewer Commission (Commission) to a request for public records. See G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On October 12, 2023, Mr. Canty requested “... a copy of my Personnel file.” On October 18, 2023, Mr. Canty modified his request as follows, “I am requesting a copy of anything placed in my Personnel file and removed within the last 30 days. I am also requesting a complete Audit of all BWSC files conducted by an outside firm with knowledge of Massachusetts Human Resource requirements.” The Commission responded on August 25, 2023. Unsatisfied with the Commission’s response, Mr. Canty petitioned this office and this appeal, SPR23/2562, was opened as a result. Subsequently, the Commission provided a supplemental response on November 7, 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); 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 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

Brigid Wright, Esq. SPR23/2562 Page 2 November 8, 2023 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. Status of the requestor; reason for the request Please note that 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. Canty’s interest in obtaining the records shall have no bearing on the public nature of the record. The Commission’s August 25th and November 7th Responses In the Commission’s August 25, 2023 response, the Commission stated, “... the Commission has identified one (1) document responsive to your public records request which it intends to withhold under M.G.L. c. 4 § 7(26)(c).” In its November 7, 2023 response, the Commission opined, “Mr. Canty’s request for a copy of his personnel file would ordinarily be dictated by M.G.L. c. 149 § 52C, governing employees’ access to records specific to their employment history. The Commission provided Mr. Canty with a complete copy of his entire file; the document that is the subject of this appeal was not in Mr. Canty’s personnel file at the time of his initial request October 12, 2023 and therefore was not in his file when he narrowed the request on October 18, 2023. In light of this, it is the Commission’s position that this document is not governed by § 52C, and instead is governed by Public Records Law.” 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

Brigid Wright, Esq. SPR23/2562 Page 3 November 8, 2023 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). 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 Commission asserted, “[i]t is the Commission’s practice to withhold from disclosure as much of an employee’s personnel file and/or disciplinary record as is permissible, while still remaining compliant with the spirit of MA Public Records Law ... The one (1) document being withheld pursuant to exemption (c) is a memorandum issuing discipline to you. This memorandum is a textbook example of the type of record that the Massachusetts legislature intended to protect from disclosure in crafting this exemption, as it includes highly personal information about you and your employment. It is the Commission’s position even though you are seeking a document that involves yourself, that fact does not make the record ‘more’ public; all requesters are treated the same under M.G.L. c. 4., and it would be a gross deviation from Commission practice to produce such a record. As such, the Commission has no other records responsive to your request.”

Brigid Wright, Esq. SPR23/2562 Page 4 November 8, 2023 Current appeal In his appeal, Mr. Canty states, “I believe this document was illegally placed in my file and my rights were violated and potentially criminal complaints could be filed, therefore I should be able to receive a copy as I originally requested. Again, my complete personnel file was given except this letter/memo.” In camera inspection In order to facilitate a determination as to the applicability of the Commission’s claims to withhold the requested record pursuant to Exemption (c) of the Public Records Law, the Commission must provide this office with an un-redacted copy of the responsive record for in camera inspection. After I complete my review of the document, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Commission is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay.

Brigid Wright, Esq. SPR23/2562 Page 5 November 8, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Sean Canty