John Hawkinson v. Cambridge, City of - Office of the City Solicitor (SPR 20240013)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2024 SPR24/0013 Seah Levy Public Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of John Hawkinson appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 26, 2023, Mr. Hawkinson requested “emails to the City Council from (or authored by) the City Manager or his office (including the Deputy City Manager, Chief of Staff, or the assistants to the City Manager) or the Director of Communications or his office (including the Director of Media Relations), from Dec. 18 through Christmas Day[.]” The City responded on January 2, 2024, providing records in redacted form, and claiming that the responsive records were redacted pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Unsatisfied with the City’s response, Mr. Hawkinson petitioned this office and this appeal, SPR24/0013, 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). 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. Attorney 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

Seah Levy SPR24/0013 Page 2 January 16, 2024 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 City’s January 2nd Response In its January 2, 2024 response, the City provided records and cited Exemption (c) of the Public Records Law to redact the responsive records. Current appeal In his appeal, Mr. Hawkinson states, “[t]he City attempts to redact the identity of two members of the public who emailed the City Council and the City Manager about a matter of public policy.” 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.

Seah Levy SPR24/0013 Page 3 January 16, 2024 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). When analyzing a privacy claim, there is 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. Under Exemption (c), the City argues that “some information has been redacted, as this information is exempt from disclosure pursuant to Exemption G. L. c. 4 § 7(26)(c) of the Public Records law in order to protect the privacy of an individual and to protect information of a personal nature.” The City is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; 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). Based on the City’s response, the City has not explained how the redacted information constitutes intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the City did not provide 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. PETA, 477 Mass. at 292. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Mr. Hawkinson 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 the response to this office at pre@sec.state.ma.us.

Seah Levy SPR24/0013 Page 4 January 16, 2024 Sincerely, Manza Arthur Supervisor of Records cc: John Hawkinson