Martha Barrows v. Randolph, Town of - Town Clerk (SPR 20242270)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2024 SPR24/2270 Cheryl Sass Town Clerk & Registrar Town of Randolph 41 South Main Street Randolph, MA 02368 Dear Ms. Sass: I have received the petition of Martha Barrows appealing the response of the Town of Randolph (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 14, 2024, Ms. Barrows requested, “[e]mail communications to [an identified individual] [at an identified email address] from the following [four identified email] accounts, during the listed time frames.” The Town responded on June 14, 2024, June 28, 2024, July 22, 2024, August 5, 2024 and August 8, 2024. Unsatisfied with the Town’s responses, Ms. Barrows petitioned this office and this appeal, SPR24/2270, was opened as a result. Subsequently, I learned that the Town provided a further response to Ms. Barrows on August 19, 2024, which Ms. Barrows has appealed. 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 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

Cheryl Sass SPR24/2270 Page 2 August 23, 2024 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 June, July and August Responses In its June 14, 2024 response, the Town acknowledged receipt of the request. In its June 28, 2024 response, the Town requested additional time and stated, “[a] search of the emails you requested on June 14, 2024, has produced several documents containing information that is exempt from the public records law. We are reviewing the documents and redacting the information covered by the exemption. We are requesting a 15-day extension to July 23rd, in order to complete our review.” In its August 5, 2024 response, the Town asserted, “[a]s you are not the person who is the subject of your husband’s personnel records, you have no legal right to access the contents of his file. The personnel files of Joint Board employees are maintained in Holbrook. If your husband wishes to access the contents of his personnel file, he should contact the Holbrook Human Resources Director.” In its July 22, 2024 and August 8, 2024 responses, the Town cited Exemptions (c) and (n) of the Public Records Law and attorney-client privilege to withhold the requested records. Although the Town cites the attorney-client privilege in its responses, it is unclear how the Town is claiming attorney-client privilege to withhold the requested records. The Town did not provide the specificity required under the Public Records Law nor additional details in support of its claim of attorney-client privilege. The Town must clarify. In its August 19th response, the Town advised, “...the Town has provided directly to [a named individual] the emails that were placed in his personnel file as required under G.L. c. 149, § 52C – these include most of the emails which were withheld pursuant to Ms. Barrows public records request. As such, to the extent Ms. Barrows seeks to obtain documents pertaining to her husband on behalf of [a named individual], [the named individual] is now in possession of those documents. Counsel attempted to confer with Ms. Barrows as to the records she was seeking and to clarify matters, but Ms. Barrows was unwilling to engage in discussion.” Current appeal In her August 13, 2024 email, Ms. Barrows asserts, “[a]fter Attorney ... inserted himself into the email communication between myself and [the Town], on August 8, I called him. In that conversation he told me that he put emails talking about my husband into my husband’s personnel file and therefore they are no longer available as part of a PRR. According to my follow up with information officers, that is not true. I mention the two above items because I see

Cheryl Sass SPR24/2270 Page 3 August 23, 2024 a possible deliberate avoidance of providing the public records to which I am entitled.” Ms. Barrows’ emails of August 19, 2024 and August 21, 2024, indicate that she has not received “the complete response of items [she] requested ... from the Town of Randolph.” 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 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. 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).

Cheryl Sass SPR24/2270 Page 4 August 23, 2024 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 response, the Town explains that it withheld, “[c]ertain documents ... which are exempt from disclosure under exemption (c) of the public records laws, which protects from disclosure information that may constitute an unwarranted invasion of personal privacy, including personnel records ...” In its August 19th response, the Town further opines, “...the Town continues to withhold pursuant to exemption (c) as they contain information about other named individuals the disclosure of which would constitute an unwarranted invasion of personal privacy.” Despite the Town’s response, I find it has not met its burden to withhold the responsive records, in their entirety, under Exemption (c) of the Public Records Law. Particularly, the Town has not demonstrated that the responsive records constitute one of the core categories of personnel information that may be withheld under Exemption (c). Nor has the Town explained how the records contain intimate details of a highly personal nature. PETA, 477 Mass. at 292. Further, based upon the Town’s response, it is unclear whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L c. 4, § 7(26)(n). Under Exemption (n), a records custodian may withhold a record if its release is likely to jeopardize public safety or cyber security. It is the duty of the custodian to exercise “reasonable judgment” to determine whether disclosure of the record may impact public safety. Id. Exemption (n) requires a two prong analysis. People for the Ethical Treatment of Animals (PETA) v. Dep’t. of Agric. Res., 477 Mass. 280, 286 (2017). The first prong examines

Cheryl Sass SPR24/2270 Page 5 August 23, 2024 “whether, and to what degree, the record sought resembles the records listed as examples in the statute”; specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” Id. at 289-90. With regard to a prong one analysis, if the requested record is not expressly listed in the text of the exemption, then Exemption (n) does not apply unless the record is related to one of the statute’s enumerated examples. See PETA, 477 Mass. at 288 (“we must interpret the ‘any other records’ clause as embracing only those records that, when released, are ‘likely to jeopardize public safety [or cyber security]’ in a similar way to one of the examples listed in exemption (n)”). The second prong examines whether, in the record custodian’s reasonable judgment, the requested records are factually and contextually likely to jeopardize public safety or cyber security. Id. at 289-90. However, the “reasonable judgment” language in Exemption (n) does not imply a heightened level of deference to the records custodian’s initial denial. Id. at 291. “[T]he primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records . . . to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. at 289-90. In its response, the Town states, “[c]ertain documents ... are exempt from disclosure under exemption (n), which protects information the disclosure of which might jeopardize public safety, are not being provided.” The Town further states, “[t]here is also an email that is responsive which was withheld under exemption (n) of the public records laws as it relates solely to a matter of security at the facility.” Based on the Town’s response, it is unclear how the requested records resemble the records listed as examples in the statute as contemplated in PETA. See PETA, 477 Mass. at 289. Particularly, it is unclear how the records resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the records are the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See Id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). Further, the Town did not provide factual heft to support the withholding of the requested records pursuant to Exemption (n). Specifically, the Town has not sufficiently explained how disclosure of the records are likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Town must clarify these matters. Additionally, it is uncertain the types of documents the Town withheld from disclosure. The Town is reminded that 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); see also 950 C.M.R. 32.06(3)(c)(4). As such, the Town must identify the records it withheld from disclosure under Exemptions (c) and (n) of the Public Records Law.

Cheryl Sass SPR24/2270 Page 6 August 23, 2024 Conclusion Accordingly, the Town is ordered to provide a response to Ms. Barrows, in a manner consistent with the Public Records Law, its Regulations and this order within 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. Barrows 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: Martha Barrows