Mike Offner v. Newton, City of (SPR 20242245)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2024 SPR24/2245 Carol Moore City Clerk City of Newton 1000 Commonwealth Avenue Newton Centre, MA 02459 Dear Ms. Moore: I have received the petition of Mike Offner appealing the response of the City of Newton (City) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). SPR24/2110 On July 16, 2024, Mr. Offner requested, “[1] Provision via email to me of all 2023 Library Art Committee meeting agendas and minutes [and] [2] Provision via email to me of names of all 2023 members of the Library Art Committee.” On July 22, 2024, the City provided responsive records and stated that it redacted portions of the records that named “the individuals that serve on the Library’s art selection committee pursuant to Exemption (c) of the Public Records law[.]” Unsatisfied with the City’s July 22nd response, Mr. Offner petitioned this office and the appeal, SPR24/2110, was opened as a result. SPR24/2111 On July 8, 2024, Mr. Offner requested the following: [1.] Timeframe: January 1, 2023 to December 31, 2023 . . . [a]ny communications to or from any Newton Free Library staff to any members of the Newton Free Library Art Selection Committee . . . [e]mail addresses searched should include but not be limited to [three identified email addresses][;] [2.] Please confirm whether the City of Newton can search emails from Newton Library employees using @minlib.net email addresses[;] 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 Moore SPR24/2245 Page 2 August 22, 2024 [3.] Please also advise to whom one should direct Public Records requests for @minlib.net emails . . .[.] On July 22, 2024, the City provided responsive records and stated that it redacted portions of the records that included “data relating to individuals on the art committee, the disclosure of which would constitute an unwarranted invasion of personal privacy” pursuant to Exemption (c) of the Public Records Law. Unsatisfied with the City’s July 22nd response, Mr. Offner petitioned this office and the appeal, SPR24/2111, was opened as a result. Previous Appeals See SPR24/2110 Determination of the Supervisor of Records (August 2, 2024) and SPR24/2111 Determination of the Supervisor of Records (August 6, 2024) In response to the appeals, the City provided a supplemental response on August 2, 2024. As a result, I closed the appeals. Unsatisfied with the City’s August 2nd response, Mr. Offner further petitioned this office and the current appeal, SPR24/2245, was opened. 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. 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. Current Appeal In his appeal, Mr. Offner contests the City’s “reasons for redacting names of individuals who chose art for the Newton Free Library pursuant to Public Records Law Exemption (c).” He argues, “[i]ndulging this request for secrecy in complete contravention of the MA Public Records Law, with *zero* evidence of any harm having come to anyone involved in the controversial

Carol Moore SPR24/2245 Page 3 August 22, 2024 exhibit in any way, is wild speculation that is chilling to the notion of transparency as foundational to democracy” and requests that the Supervisor “rule that exemption (c) does *not* apply to members of the Newton Free Library Art Committee[.]” The City’s August 2nd Response In its August 2, 2024 response, a City representative indicates that they are “writing in response to pending appeals SPR24/2110 and SPR/2111” and states the following: As set forth in the City’s initial response to these public records requests, the City has withheld and redacted the names of . . . the individuals who assisted in selecting art for the Newton Free Library gallery pursuant to Exemption (c) of the Public Records law in order to protect their privacy. M.G.L. c. 4 sec. 7 (26)(c). The Art Committee is an informal group of artists and art professors who live or work in Newton that meet twice a year to review and select shows for recommendation to the Library for the year. They met alone and did not take any formal notes on their selection process. The individuals are neither City employees nor City officials; they are simply volunteers who spend a few hours each year reviewing and selecting art submissions. The art exhibit that was on display this past May was extremely controversial, both within Newton and beyond. . . . The exhibit solicited anger and vitriol from all sides of this difficult geopolitical and religious issue. The City was required to have a police detail present at the Library for most of the exhibit’s run. Library staff and patrons reported numerous incidents of harassment and disruption due to the exhibit. In one incident, Library staff members were called “baby rapers.” The Library was forced to close early on the night of the artist’s reception, which also required significant police presence due to hundreds of protesters that ultimately did not allow the reception to take place. News reports and video from that evening capture deep passion and outrage from all sides. . . . During this event, disturbing messages of hate and physical threats were directed at city officials. The Library has also received thousands of emails on this exhibit, some of which directs anger towards the art committee for their selection. While we understand the desire for transparency and do not question the intentions of the requester in seeking this information, there is reasonable concern that once the names of the committee members become available to the public that those private individuals would be subject to retaliation, harassment, and invasion of their personal privacy. There are also concerns about their personal safety if their names are disclosed amidst the current climate of anger and outrage. Given these circumstances, the City has determined the privacy interests of the volunteer committee members outweigh any public interest in the disclosure of their names. Having applied this balancing test to our analysis, we relied on the SJC’ finding that “where the public interest in obtaining the requested information

Carol Moore SPR24/2245 Page 4 August 22, 2024 substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield.” People for the Ethical Treatment of Animals, Inc. v. Dep’t of Agric. Res., 477 Mass. 280, 291–92 (2017). In addition to the above explanation, the City is attaching additional documents to show the level of vitriol directed towards city officials associated with the recent art exhibit that goes beyond critical public discourse. These include a sample of emails received regarding the exhibit, excerpts from a comment book that was placed in the exhibit room and three library incident reports. Please note that all names have been redacted from these documents to protect the privacy of city employees and individuals. Finally, the City clarifies that it does not possess any minutes of the art committee as minutes or notes of the meeting were not kept. It is the City’s position that the Art Committee is not a public body subject to OML. The Art Committee was not created pursuant to any statute or bylaw but was assembled informally by the former Manager of Programs and Communications. The Art Committee was not appointed by the Library Board of Trustees. The purpose of the Art Committee was to select works they recommended for Exhibit in the Library. The final authority lay with the Programs Manager under the supervision of the Library Director to implement these recommendations. The Library Director and Programs Manager are not governmental bodies. Furthermore, the Open Meeting Law Guide published by the Office of the Attorney General states, “[b]odies appointed by a public official solely for the purpose of advising the official on a decision that individual could make alone are not public bodies subject to the Open Meeting Law.” As a result, the Committee is not a public body subject to the requirements of OML. Connelly v. School Committee of Hanover, 409 Mass. 232 (1991). Accordingly, the Art Committee is not a public body subject to OML, and meetings held by the Art Committee were not required to follow the requirements of OML. Exemption (c) Exemption (c) permits the withholding of: 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

Carol Moore SPR24/2245 Page 5 August 22, 2024 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. Based on the City’s response, I find the City has not met its burden of specificity to withhold the names of the Art Committee members under Exemption (c) of the Public Records Law. Specifically, where the City states that the Art Committee members are “volunteers who spend a few hours each year reviewing and selecting art submissions” and that the Art Committee was “assembled informally by the former Manager of Programs and Communications[,]” it is uncertain whether the Art Committee members are “public employees.” Accordingly, the City must provide further details regarding the Art Committee members’ job classification and working relationship with the City. The City must clarify this matter. Open Meeting Law The City’s response regarding the requested meeting agendas and minutes raises issues related to the Open Meeting Law, rather than the Public Records Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address this issue in this determination. See G. L. c. 30A, § 23. If unresolved issues remain, I encourage the parties to contact the Office of the Attorney General for a determination on this matter. Conclusion Accordingly, the City is ordered to provide Mr. Offner 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

Carol Moore SPR24/2245 Page 6 August 22, 2024 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: Mike Offner Jonah M. Temple, Esq.