Thomas Button v. Worcester Regional Retirement System (SPR 20240926)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2024 SPR24/0926 Rachel Grimaldi Executive Director Worcester Regional Retirement System 23 Midstate Drive, Suite 106 Auburn, MA 01501 Dear Ms. Grimaldi: I have received the petition of Thomas Button appealing the response of the Worcester Regional Retirement System (System/WRRS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 10, 2024, Mr. Button requested, “…a copy of the ‘mailing list’ of WRRS pensioners.” The System provided a response on March 25, 2024. Unsatisfied with the System’s response, Mr. Button petitioned this office and this appeal, SPR24/0926, was opened as a result. Subsequently, the System provided a supplemental response on April 4, 2024. Mr. Button also appealed the April 4th response. 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. See 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Rachel Grimaldi SPR24/0926 Page 2 April 10, 2024 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 System’s March 25th and April 4th responses In its March 25, 2024 response, the System stated that records were withheld pursuant to Exemption (c) of the Public Records Law. In its April 4, 2024 response, the System asserted that it does not possess the records. Additionally, the System stated the records were withheld pursuant to Exemption (o) of the Public Records Law and, also, further expanded on its claim of Exemption (c) to withhold the records. See G. L. c. 4, § 7(26)(c), and (o). Current Appeal In his appeal, Mr. Button stated: I feel that the names and addresses of the pensioners of WRRS are not private - WRRS is a public agency that administers retirement funds of public employees - public employees have a diminished expectation of privacy than non-public employees, also as WRRS is a public agency they are obligated to comport their business “within the view” of the public … [Massachusetts] requires towns to compile a street listing annually that requires them to compile a listing of every resident and their address and even their occupation. … As these pensioners were public employees and are receiving public funds (all monies are public) - contributed by the employee and their public employer - there should be no expectation of privacy as to who is receiving the funds. In response to the System’s April 4th response, Mr. Button stated: It is insincere if not untruthful to claim that WRRS does not have the names/addresses of its members – they are responsible for the administration of its members pensions – they must know who their members are and undoubtedly have this information or – can get it from their private third party vendor – who would be their agent and acting as them in this regard – this is a faux/fake and insincere explanation! … By nature of them contracting with an outside vendor negates that the information I seek is “private[.]” The public records act specifically states I do not have to give a reason for my request but [the WRRS] response seems to infer the public interest is outweighed by privacy interests where I say that where the [state of Massachusetts] requires all residents to be listed… with their address and occupation… in street listing every year, with few exceptions [,… the] privacy interest is hereby negated.

Rachel Grimaldi SPR24/0926 Page 3 April 10, 2024 Public Records; Agency Relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). In its April 4th response, an attorney for the System stated the following: Upon review, all responsive records, if any, are held by a private third-party vendor which the WRRS contracts with to perform its mailings. The WRRS does not have “possession, custody or control” of any “mailing list” as requested, and is under no obligation to create a new record. The System is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. 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). 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. 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).

Rachel Grimaldi SPR24/0926 Page 4 April 10, 2024 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 March 25, 2024 response, the System asserted: [T]he information requested is exempt from the definition of a public record on bases including, but not limited to the Privacy Exemption to the Public Record Law, G.L. c. 4 §7(26)(c.), and other applicable privileges and any other potential exemptions or legal authority, and thus may be withheld. In its April 4, 2024 response, the System further asserted: …there is no public interest in obtaining the home addresses of WRRS pensioners, as there is no connection between an individual’s home address and current or former public employment. …there is no public interest in obtaining the names of the WRRS pensioners. … Once public employees retire they know (sic) longer have any duties to carry out on behalf of the public. The only public interest remaining is where and how public funds are being used on pensioners, but members of the public can access such information from the publicly available financial reports of the WRRS – the specific names of each individual pensioner receiving those funds does not add to the public’s interest in ensuring public funds are being used properly. Thus, each individual pensioner’s private interests outweigh any public interest in their names, and their names are exempt…. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody

Rachel Grimaldi SPR24/0926 Page 5 April 10, 2024 of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o). Where the requested records are the type contemplated under Exemption (o) of the Public Records Law,” I find that the System has met its burden to withhold the responsive records under Exemption (o). Consequently, I find it unnecessary to address the System’s claims under Exemption (c). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Button is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Thomas Button