Les Brail v. Newton, City of (SPR 20243260)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2024 SPR24/3260 Jonah M. Temple, Esq. Deputy City Solicitor City of Newton – Law Department 1000 Commonwealth Avenue Newton, MA 02459 Dear Attorney Temple: I have received the petition of Les Brail appealing the response of the City of Newton to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 3, 2024, Mr. Brail requested the following: [1] All correspondence, minutes, notes and documents regarding the selection of art exhibits at the Newton Public Library dating back to January 1, 2023[;] [2] The list of jurists that select the art exhibits (“the jurists”) for the Newton Public Library dating back to Jan 1, 2023[;] [3] Any correspondence, minutes, notes and documents of the jurists dating back to January 1, 2023[; and] [4] Any correspondence between the jurists and representatives/staff of the City of Newton dating back to January 1, 2023. Prior Appeals This request was the subject of prior appeals. See SPR23/1893 Determination of the Supervisor of Records (July 3, 2023) and SPR24/2492 Determination of the Supervisor of Records (September 16, 2024). In my September 16, 2024 determination, I learned that the City provided a response on September 6, 2024, to Mr. Brail. Unsatisfied with the response, Mr. Brail petitioned this office and this appeal, SPR24/3260, 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 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

Jonah M. Temple, Esq. SPR24/3260 Page 2 December 18, 2024 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. Brail states, “I once again request that the names of the Newton Free Library’s Art Committee be released by the City of Newton.” The City’s December 6th response In its December 6, 2024 response, the City cited Exemption (c) of the Public Records Law to withhold the names of the Newton Free Library’s Art Committee. 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

Jonah M. Temple, Esq. SPR24/3260 Page 3 December 18, 2024 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 response, the City stated, 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 subject to the Open Meeting Law. 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. Therefore, for all the reasons set forth in the City’s prior responses in connection

Jonah M. Temple, Esq. SPR24/3260 Page 4 December 18, 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. Based on the City’s December 6th response, I find the City has not met its burden to withhold the names of the Art Committee members under Exemption (c) of the Public Records Law. Specifically, the City has not demonstrated that the names of the Art Committee members constitute intimate details of a highly personal nature or that disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it is not clear how this information is not available from other sources. PETA, 477 Mass. at 292. Additionally, despite the City’s response, the City has not established how any privacy interest is not substantially outweighed by the public interest in obtaining this information. As a result, I find that the City has not met its burden in withholding the names of the Art Committee members under Exemption (c) of the Public Records Law. Conclusion Accordingly, the City is ordered to provide Mr. Brail 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. Brail may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Les Brail