Mike Offner v. Newton, City of - City Clerk (SPR 20250035)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 17, 2025 SPR25/0035 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), SPR24/2111 Determination of the Supervisor of Records (August 6, 2024), SPR24/2245 Determination of the Supervisor of Records (August 22, 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 SPR25/0035 Page 2 January 17, 2025 2024) and SPR24/2555 Determination of the Supervisor of Records (September 24, 2024). In my September 24th determination, I found that the City had not met its burden to redact the names of the Art Committee members under Exemption (c) of the Public Records Law. Specifically, it was unclear how the names constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. The City responded on October 8, 2024. Unsatisfied with the City’s response, Mr. Offner petitioned this office and this appeal, SPR25/0035, was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response on January 13, 2025. 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 states, “[t]he City of Newton followed up with a letter to me on October 8, 2024. ... This letter primarily repeats the identical arguments that Supervisor of Records Arthur already declared unpersuasive in the September 24, 2024 SPR 24/2555.” The City’s October 8th and January 13th Response In its October 8, 2024 and January 13, 2024 responses, the City states it has redacted “the names of the individuals on the Art Committee” under Exemptions (c) and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(c), (n). Additionally, with its January 13th response, the City provides a December 19, 2024 determination letter from the Office of the Attorney General regarding an Open Meeting Law complaint.

Carol Moore SPR25/0035 Page 3 January 17, 2025 Open Meeting Law In its January 13th response, the City explains the following: As a starting point, the City disagrees with the Supervisor’s characterization of the Committee members as ‘public officials’ performing public duties. As set forth in detail in the City’s second supplemental response ... the Committee members—with the exception of one—are private citizens that volunteered to review art submissions and make recommendations to the Library’s Director and Manager of Programs. This position is buttressed by a recent decision issued by the Office of the Attorney General on December 19, 2024, finding that the Committee does not constitute a public body subject to the Open Meeting Law. The City and Mr. Offner are advised that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office. See G. L. c. 30A, § 23. In a letter to the City and Mr. Offner on December 19, 2024, referenced in the City’s January 13th response, the AGO addresses the Open Meeting Law issues related to the responsive records, and states the following: Based on the facts before us, we find that the Committee at issue here fits squarely within the exception to the definition of ‘public body’ established by the Supreme Judicial Court in Connelly. The Committee was not created by the Board and did not advise or report to the Board. Rather, the Committee was created by the library’s Manager of Programs and Communications to make recommendations to the Manager regarding art to be exhibited in the library. Furthermore, the Manager and the Library Director had final authority to accept or reject the Committee’s selections. For these reasons we find that the Committee was not a public body subject to the Open Meeting Law and therefore could not have violated the Law. See, e.g., OML 2020-52; OML 2018-62; OML 2015-93. Given that an interpretation of the Open Meeting Law falls within the authority of the AGO and not this office, and in light of the AGO’s December 19th letter, I decline to address any Open Meeting Law arguments raised in the City’s response. See G. L. c. 30A, § 23. Accordingly, I will proceed to address the City’s claims under Exemptions (c) and (n) of the Public Records Law. 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

Carol Moore SPR25/0035 Page 4 January 17, 2025 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. In the City’s October 8th response, it states: The individuals who comprised the Committee were private volunteers, not public employees. They did not carry out any official duties and had no final decision- making authority. Because they were not acting in any capacity as a public official, they have a greater expectation of privacy. Specifically, such individuals have a strong privacy interest in their identities and contact information that is not substantially outweighed by the public interest in disclosing that information. See Federal Labor Relations Auth. v. United States Dep’t of Navy, Naval Communications Unit Cutler, E. Machias, Me., 941 F.2d 49, 55–56 (1st Cir. 1991) (privacy interest in one’s name and home address is “discernible” and “real enough to be worthy of recognition and protection in appropriate circumstances”). … there is reasonable concern that, once the names of the committee members become available to the general public, 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

Carol Moore SPR25/0035 Page 5 January 17, 2025 current climate of anger and outrage over the Israel-Hamas war. 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 in making our reasoned determination, we relied on the Supreme Judicial Court’s guidance in identifying the strong privacy interest for private individuals and in analyzing when the seriousness of an invasion of privacy sufficiently outweighs the public interest in obtaining the requested information. People for the Ethical Treatment of Animals, Inc. v. Dep’t of Agric. Res., 477 Mass. 280, 291–92 (2017) (“PETA”). Specifically, under the PETA analysis, while the names of adults are not generally considered intimate details, under the circumstances here the City has reasonably determined that the disclosure of the names, phone numbers, and email addresses of the private citizens on the Committee would result in not only personal embarrassment to an individual of normal sensibilities, but may also result in retaliation, harassment, and/or injury. See also Boston Globe Media Partners, LLC v. Department of Public Health, 482 Mass. 427, 440-42 (2019) (noting that whether requested information is intimate and highly personal is one of many possible factors in evaluating privacy interests and finding the names of private citizens have a heightened privacy interest). … Lastly, the names of these private citizens and their contact information is not available from any other source and has never been publicly available or posted in any manner. It should also be noted that the Library has suspended its art program and does not intend to ever reconvene the Art Committee, meaning the committee no longer exists, lessening even further any public interest in disclosure. For all of these reasons, the City believes disclosure of the committee member names and contact information would constitute an unwarranted invasion of personal privacy. As the SJC stated in PETA, there are limited circumstances where safety concerns are relevant to the privacy interest. That is the case here, where the safety and harassment risk for these private individuals implicates a measurable privacy interest. In this circumstance, it is appropriate to consider the City’s valid and documented safety concerns as part of the privacy calculus. Therefore, the City has made the reasonable determination that the privacy interest of the requested information is strong and that the real risk and seriousness of the invasion of privacy that would result from public disclosure outweighs the public interest in obtaining the information. In the City’s January 13th response, it states: Next, the Supervisor’s order set forth an extremely limited application of Exemption (c) that is contrary to the Supreme Judicial Court’s decision in People for the Ethical Treatment of Animals, Inc. v. Dep’t of Agric. Res., 477 Mass. 280, 291–92 (2017) (‘PETA’). While the Supervisor’s order states that Exemption (c)

Carol Moore SPR25/0035 Page 6 January 17, 2025 is limited only to intimate details of a highly personal nature or information that would cause personal embarrassment, the statutory language for Exemption (c) is much broader and allows for the withholding of any record where disclosure “may constitute an unwarranted invasion of personal privacy.” See G.L. c. 4, § 7(26). There is no legal basis to limit this exemption to only intimate details or personal embarrassment. The Supreme Judicial Court made that clear in PETA and subsequent cases, where it acknowledges that other factors may be relevant to the privacy calculus, including concerns of an individual’s personal safety. Based on the City’s October 8th and January 13th responses, I find the City has not met its burden of specificity to redact the names of the Art Committee members under Exemption (c) of the Public Records Law. Specifically, where the Committee “was assembled by the Library’s former Manager of Programs and Communications,” it is unclear how the public’s right to know whether the Committee members were carrying out their duties in a law abiding manner is not outweighed by any potential privacy interests involved. Accordingly, the Library has not met its burden to show how the names of the Committee members may be redacted under Exemption (c). 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). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “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.” PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289- 90. The PETA decision further provides that “[because the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the

Carol Moore SPR25/0035 Page 7 January 17, 2025 reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA at 290. In its October 8, 2024 response, the City states: Finally, in addition to the City’s determination that release of the committee members’ personal information will lead to an invasion of privacy, the same concerns regarding safety and harassment support exempting this information under exemption (n). In the City’s reasonable judgment, based on all of the information referenced above and in the City’s prior responses, release of personal information concerning these private individuals will likely jeopardize public safety… Based on the City’s response, it has not met its burden to redact the names of Committee members under Exemption (n). Specifically, it is unclear how the redacted names resemble the records listed under Exemption (n). See PETA, at 289. Where the records bear little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290-91. Further, the City has not provided sufficient information to conclude that a reasonable person would agree that disclosure of the record is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. 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