Jean Kelly v. Hanson, Town of - Town Administrator (SPR 20241145)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2024 SPR24/1145 Lisa M. Green, Esq. Town Administrator Town of Hanson 542 Liberty Street Hanson, MA 02341 Dear Attorney Green: I have received the petition of Jean Kelly appealing the response of the Town of Hanson (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 22, 2024, Ms. Kelly requested, “[p]ayroll information regarding [an identified individual’s] sick time. Please include from date of hire to present [and] ... include vacation time.” Previous Appeal The requested records were the subject of a previous appeal. See SPR24/0839 Determination of the Supervisor of Records (April 2, 2024). In my April 2nd determination, I ordered the Town to clarify its use of Exemption (c) to perform the redactions that it made of the requested records. Subsequently, the Town provided a response on April 16, 2024. Unsatisfied with the response, Ms. Kelly petitioned this office and this appeal, SPR24/1145, 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. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also 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 M. Green, Esq. SPR24/1145 Page 2 May 1, 2024 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. 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 Town’s April 16th Response On April 16, 2024 the Town responded, expanding on its use of Exemption (c) in redacting the requested records. 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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. 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 M. Green, Esq. SPR24/1145 Page 3 May 1, 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 citing Exemption (c) to redact the records, the Town stated: Information regarding when an employee is sick, and how often, is inherently medical information. In particular, here, the redacted material collects information that, in the aggregate, could effectively disclose details concerning the employees medical history, which could include instances of episodic illness, scheduling of necessary treatment, or the persistence of a chronic medical condition [citation omitted]…Moreover, the details of how an individual uses their paid leave time is personal to the individual and disclosure of that information does not serve the public interest. Similarly the use of bereavement or personal leave inherently reveals details of a highly personal nature, disclosure of which does not serve the public interest…By extension, disclosure of the dates that an employee uses sick time or other forms paid leave time would constitute disclosure of the employee’s protected medical information and other details of a highly personal nature; and would result in personal embarrassment to an individual of normal sensibilities [citation omitted]. In addition, an aggregation of an employee’s use of sick time or other paid leave is not readily available from other sources [citation omitted]. Although the Town stated that disclosure does not serve the public interest, the public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. PETA, 477 Mass. at 292. Further, it is unclear how names of employees and generic classifications, e.g., “sick day,” “personal day,” etc. of absences constitute highly personal information that would result in personal embarrassment to an individual of normal sensibilities. See Brogan, 401 Mass. at 308 (holding that information consisting only of the name of an employee, dates of absences, and a generic classification are not ‘intimate details’ of a ‘highly personal nature’). The Town also stated that disclosure of hours of paid sick time is inherently medical information, however, it is unclear how the portions of the records withheld provides information about a medical condition. The Town must clarify these matters.

Lisa M. Green, Esq. SPR24/1145 Page 4 May 1, 2024 Conclusion Accordingly, the Town is ordered to provide Ms. Kelly with said response, 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. Ms. Kelly may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jean Kelly