Martha Barrows v. Holbrook, Town of - Town Clerk (SPR 20250398)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 26, 2025 SPR25/0398 Jeanmarie Tarara Town Clerk Town of Holbrook 50 North Franklin Street Holbrook, MA 02343 Dear Ms. Tarara: I have received the petition of Martha Barrows appealing the response of the Town of Holbrook (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 23, 2024, Ms. Barrows requested the following: [1] email communications to [an identified individual] from the following [identified five email addresses] within the stated time frames[;] [2] email communications to and from [an identified email addresses][;] [3] Randolph-Holbrook Joint Water time sheets for the weeks ending May 20, 2024, June 30, 2024, June 27, 2024, and July 4, 2024[.] Prior Appeal The requested records were the subject of a prior appeal. See SPR24/3462 Determination of the Supervisor of Records (January 15, 2025). In my January 15th determination, it was my understanding that the Town intended to provide a further response to Ms. Barrows. The Town responded on February 7, 2025. Unsatisfied with the Town’s response, Ms. Barrows petitioned this office and this appeal, SPR25/0398, 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). 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

Jeanmarie Tarara SPR25/0398 Page 2 February 26, 2025 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 her appeal, Ms. Barrows states the following with regard to requested records. [1] The document withheld is not identified. Should it be identified as to the date of its creation, and to who it was from, and who it was directed to? [2] It is not clear as to why the document meets the criteria for exemption (c) Under Massachusetts Public Records Law. [3] The Town has not proven the totality of the information contained in the document can be withheld. Is it a document that could be provided with redactions? [4] There are no documents provided for the dates between June 29th and July 23rd. Those dates fell within the request time frame. Given the regularity of communication from [an identified individual] to [an identified individual] it seems some emails may be missing. The emails contained within the response were all dated June 14, 17, 19, 24, 26, 27 and 28. Why are there no emails in July? The Town’s February 7th response In its February 7, 2025 response, the Town cited Exemption (c) of the Public Records Law to respond to Items 1, 2 and 3 in Ms. Barrow’s petition. Regarding Item 4, the Town stated that it had no additional records. 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).

Jeanmarie Tarara SPR25/0398 Page 3 February 26, 2025 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. Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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). 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 to Item 1 of the petition, the Town stated as follows: The complaint and response to the complaint meet the criteria for Exemption (c)

Jeanmarie Tarara SPR25/0398 Page 4 February 26, 2025 because they are exempt personnel information that is useful in making employment decisions about the subject employees. Furthermore, to confirm, the entirety of both documents are exempt – revealing information like who it was from, who it was directed to, and the date of its creation would allow the public to identify the subject employees and would constitute an unwarranted invasion of personal privacy to the subject employees. In its response to Item 2 of the petition, the Town stated as follows: The redactions in this email, other than the redacted cell phone number in the email signature, concern the licensure status of an employee. This information is exempt from disclosure under Exemption (c) as personnel file information, as it is useful in making employment decisions regarding the employee. The attachment is being withheld, as the entirety of the document concerns the licensure status of said employee, and given the limited number of employees of the Joint Water Board, the employee could easily be identified if disclosed. Although the Town indicates that the records in Items 1 and 2 constitute personnel information, it is unclear how the records constitute one of the core categories of personnel information that is useful in making employment decisions regarding an employee. It is additionally uncertain how the records, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Town did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Further, the Town must clarify whether segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). In its response to Item 3 of the petition, the Town stated as follows: The redacted information is not a name. The redacted information concerns an employee’s medical information, the disclosure of which would constitute an unwarranted invasion of personal privacy, exempt from disclosure pursuant to Exemption (c). I find that to the extent the records contain medical information that relates to a specifically named individual, the Town may permissibly withhold such portions from disclosure under Exemption (c) as identified in Item 3. In its response to Item 4 of the petition, the Town stated: To identify records responsive to your records, the Town’s IT Department

Jeanmarie Tarara SPR25/0398 Page 5 February 26, 2025 conducted a search of the Town’s email system. The Town is unaware of any other records responsive to your request and all responsive records have been provided. No Duty to Create Records Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Where the Town has confirmed that it does not possess additional responsive records, and has no duty to create records responsive to the request, I find that Ms. Barrows’ appeal concerning this issue is resolved. Conclusion Accordingly, the Town is ordered to provide Ms. Barrows with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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