Hector Montalvo v. Lawrence, City of - Office of the City Clerk (SPR 20241485)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 29, 2024 SPR24/1485 Eileen O’Connor Bernal City Clerk City of Lawrence 200 Common Street, Room 107 Lawrence, MA 01840 Dear Ms. Bernal: I have received the petition of Hector Montalvo appealing the response of the City of Lawrence (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 10, 2024, Mr. Montalvo requested: [1] All tickets issued by officer RR375 Badge #... on 5/10/24 [2] Provide full name and date of employment for Badge #.... [3] Provide any and all complaints against #... regarding false tickets issued. [4] Please provide name, position of woman working counter on 4/10/24 at 11:30 AM at the packing dept. in city hall. The City responded on May 13, 2024. Unsatisfied with this response, Mr. Montalvo petitioned this office and this appeal, SPR24/1485, was opened as a result. Subsequently the City provided a supplemental response on May 15, 2024. 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 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

Eileen O’Connor Bernal SPR24/1485 Page 2 May 29, 2024 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 City’s May 13th and May 15th responses In its May 13th response, the City provided records to satisfy Items 1, 2, and 4 of the request. The City further stated that records responsive to Item 3 of the request were withheld pursuant to Exemption (c) of the Public Records Law. In its May 15th response, the City reasserted their Exemption (c) claim. Current Appeal In his appeal, Mr. Montalvo stated, “[a]ccording to the city, this person is not a public servant and that the information requested, the public is not entitled to. As I understand it, any contractor receiving taxpayers funds for payments fall under public records laws, and I ask that you order the [City] to provide the requested information for Item number 3.” 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. 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.

Eileen O’Connor Bernal SPR24/1485 Page 3 May 29, 2024 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 May 13th response, with respect to Item 3 of the request, the City asserted: …it is the position of the City…that the information requested is exempt from the Public Records Law under exemption “C”, the privacy exemption. That section specifically defines exempt personnel information as information that is, “useful in making employment decisions regarding an employee is sufficiently personal to be exempt pursuant to the first clause….” The requested information relates directly to [an identified individual]’s personnel file and to the evaluation of his performance as a city employee. We deem it is exempt. As [the identified individual] is not a police officer, no part of his personnel file would be the subject of an internal affairs investigation. An internal affairs investigation potentially could be excluded from this exemption. However, the documents requested do not fall under that exclusion and are not public records. In its May 15, 2024 supplemental response, the City reasserted the above statement. Based on the City’s response, it is unclear how the records constitute one of the core categories of personnel information that are useful in making employment decisions regarding an employee. Also, it is uncertain how the records, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from

Eileen O’Connor Bernal SPR24/1485 Page 4 May 29, 2024 other sources. PETA, 477 Mass. At 292. Further, the City did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Further it is unclear if the City could provide segregable portions of the responsive records. Any non-exempt segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The City must clarify these matters. Further, based on the City’s response, it is unclear what types of records it possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the City withheld responsive records without identifying the records. Therefore, the City must identify the records it has in its possession that the City withheld under Exemption (c). As a result, I find that the City did not meet its burden of specificity in claiming Exemption (c) to withhold the responsive records in their entirety. Conclusion Accordingly, the City is ordered to provide Mr. Montalvo 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. Mr. Montalvo may appeal the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Hector Montalvo