Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20242100)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 7, 2024 SPR24/2100 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the City of Malden (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 9, 2024, the requestor sought “the author and all recipients (To:, Cc:, and/or Bcc:), date, and subject heading of all email sent by and/or received by any electronic mail account for [a named individual].” The City responded on July 23, 2024, providing redacted records. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/2100, 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 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

Carol Ann Desiderio SPR24/2100 Page 2 August 7, 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 City’s July 23rd Response In its July 23, 2024 response, the City cited Exemptions (a) and (c) of the Public Records Law to redact responsive records. Current Appeal In the appeal petition, the requestor states the following: The PRR response… demonstrates that a… [named individual] has used his private email… account for public body business including business before the body, and communications thereof. … [T]he City of Malden has been in communications with [a named individual] through his personal email account and is aware that he is conducting municipal business on non-municipal systems. … OpenCommonwealth asks that the SPR find that any Attorney-Client privilege claimed by Malden regarding [a named individual] and his work at the Licensing Board must be deemed as waived as there is no possible way to demonstrate that such privilege has not been waived. OpenCommonwealth asks that the SPR find that any privacy claims claimed by Malden regarding [a named individual] and his work at the Licensing Board must be deemed as waived as there is no controls available to Malden to maintain the privacy of any communications. OpenCommonwealth asks the SPR to find and Order that Malden violated public records law, violated municipal data retention law, and require that Malden require [a named individual] provide all emails involving city business to the City for proper retention, destruction and management, and further direct [a named individual] to destroy all communications in his private gmail account which belong to the City. … OpenCommonwealth also asks the SPR to find and Order that Malden search for all responsive records, as the records provided do not begin prior to 1-2-2019, provide all responsive records, remove current redactions, and do so without delay and without charge. Exemption (c) Exemption (c) permits the withholding of:

Carol Ann Desiderio SPR24/2100 Page 3 August 7, 2024 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). 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. Under Exemption (c), the City states, “the responsive records included personnel record information or private personal information which is not subject to disclosure pursuant to Exemption (c) to the Public Records Law… The Supervisor states in its guide: For example: Are cell phone numbers and personal email addresses of private citizens public? A private citizen whose cell phone number and personal email address is unpublished may have a reasonable expectation of privacy in this information. Any public interest in the disclosure of cell phone numbers and personal email addresses of citizens likely does not outweigh the privacy interest because this information would not shed light on whether government officials are carrying out their duties in a law-abiding and efficient manner. Therefore, this information can likely be withheld under Exemption (c)… In this case, personal emails were redacted pursuant to this guidance under Exemption (c).” Based on the City’s response, it is unclear if the redacted personal email addresses were used for City business. The City must clarify this matter.

Carol Ann Desiderio SPR24/2100 Page 4 August 7, 2024 In the appeal petition, the requestor disputes the City’s claim of attorney-client privilege to withhold records. However, where the City has not asserted the attorney-client privilege to redact responsive records, I decline to opine on the matter. Additional Records Based on the requestor’s appeal, it is unclear whether the City possesses additional records responsive to the request. If the City does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide the requestor 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. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency