Mike Offner v. Newton, City of (SPR 20242555)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 24, 2024 SPR24/2555 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] . . . all 2023 Library Art Committee meeting agendas and minutes [and] [2] . . . names of all 2023 members of the Library Art Committee.” 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[;] [3.] Please also advise to whom one should direct Public Records requests for @minlib.net emails . . .[.] Previous Appeals These requests were the subject of 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); and SPR24/2245 Determination of the Supervisor of Records (August 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 SPR24/2555 Page 2 September 24, 2024 22, 2024). In my August 22nd determination, I found that the City had not met its burden to redact information under Exemption (c) of the Public Records Law. Specifically, I ordered the City to provide further details regarding the Art Committee members’ job classification and working relationship with the City. The City responded on September 6, 2024. Unsatisfied with the City’s response, Mr. Offner petitioned this office and this appeal, SPR23/2555, 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. 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 “redactions the City of Newton has made to Public Records related to the Newton Free Library Art Committee.” He argues, “[t]he public has a strong interest in knowing what the actual composition of the Art Committee was. . . .” and requests that the Supervisor “direct the City of Newton to produce, on a fully unredacted basis, public records regarding the 2023 Newton Free Library Art Committee. . . .” The City’s September 6th Response In its September 6, 2024 response, the City indicates that it is providing further information “in accordance with the Supervisor of Records order, dated August 22, 2024, regarding [SPR24/2245].” Specifically, the City notes its response is intended “to [‘]provide further details regarding the Art Committee members’ job classification and working relationship to the City.[’]” The City additionally states the following: In 2023 the Art Committee consisted of six members. The Committee was assembled by the Library’s former Manager of Programs and Communications

Carol Moore SPR24/2555 Page 3 September 24, 2024 (“Programs Manager”). The Programs Manager acted as the coordinator and sole contact person for the Art Committee. Twice per year the Programs Manager would send the Art Committee a packet of art exhibits for the Committee to review. The Art Committee would then meet privately to review and discuss the exhibits and would make recommendations to the Program Manager as to which exhibits should be selected. This time amounted to a few hours annually by the members of the Art Committee. Five of the six members of the Art Committee had no affiliation with the City of Newton. They were not public employees, nor were they special municipal employees under the conflict of interest law, G.L. c. 268A. One individual on the Art Committee in 2023 happened to be a Library employee. This individual was also a Newton resident and a professional artist. They volunteered on the Committee solely in their capacity as a resident and artist and not as a City employee. So, while this person was technically a public employee in 2023, they volunteered their time on the Committee as a private citizen. Therefore, at all times, the Art Committee consisted of local artists or art professors who simply volunteered a few hours each year to review and recommend art exhibits. The final authority, however, lay with the Programs Manager under the supervision of the Library Director to implement their recommendations. To be clear: the members of the Art Committee were volunteers, not public employees. It was an informal group that made recommendations to and had contact with a single Library employee. They are not a public or governmental body, and they are not special municipal employees subject to the conflict of interest law. The standard applied by Massachusetts courts in other contexts to determine whether an individual is a “public employee” depends on whether the employer has the right to direct and control the individual’s activities. See, e.g., McNamara v. Honeyman, 406 Mass. 43, 48 (1989). That is absolutely not the case here, where the Library had no say or control over the details of the volunteers’ activities. Given that the Supreme Judicial Court has noted that public employees have a diminished expectation of privacy in certain information, PETA v. Department of Agricultural Resources, 477 Mass. 280, 293 (2017), because the individuals who volunteered on the Art Committee were not acting as public employees, they have a greater privacy interest than public employees. Thus, the public interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner, referenced in PETA, is not present here. PETA at 292. The PETA case also recognized that there may be circumstances where there is a “significant risk to an individual’s personal safety” in disclosing personal information which can impact whether the privacy interests in exemption (c) outweigh the public interest in disclosure. PETA at 295. Therefore, for all the reasons set forth in the City’s prior responses in connection

Carol Moore SPR24/2555 Page 4 September 24, 2024 with this appeal, the City has determined the privacy interests of the volunteer committee members outweigh any public interest in the disclosure of their names. 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. 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 September 6th 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, it is unclear how the names of the Art Committee members constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it is not clear whether this information is available from other sources. PETA, 477 Mass. at 292. The City must clarify these matters.

Carol Moore SPR24/2555 Page 5 September 24, 2024 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 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.