Ada Zhong v. Westwood, Town of - Clerk's Office (SPR 20251994)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 23, 2025 SPR25/1994 Dottie Powers Town Clerk Town of Westwood 580 High Street Westwood, MA 02090 Dear Ms. Powers: I have received the petition of Ada Zhong appealing the response of the Town of Westwood (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 21, 2025, Ms. Zhong requested, “…information and documents related to the appointment policies, timelines, procedures, and current member terms for the Westwood Finance and Warrant Commission (FinCom), as well as applicant information for the period of January 1, 2025, to May 19, 2025.” Specifically Ms. Zhong sought: [1] Documents outlining the appointment policy, timelines, and procedures for selecting members of the Finance and Warrant Commission, including any relevant town bylaws, charter provisions, or guidelines. [2] Records specifying the exact start and end dates of the terms for all current Finance and Warrant Commission members. [3] The total number of individuals who submitted applications, resumes, letters of interest, or any other documents for appointment to the Finance and Warrant Commission between January 1, 2025, and May 19, 2025. [4] Copies of all applications, resumes, letters of interest, or any other documents submitted by those individuals for appointment to the Commission during this period. [5] Any related correspondence or records pertaining to the number of applicants or their applications for the Commission during this timeframe. 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

Dottie Powers SPR25/1994 Page 2 July 23, 2025 Previous Appeal This request was the subject of a previous appeal. See SPR25/1955 Determination of the Supervisor of Records (July 17, 2025). In my July 17th determination, I closed SPR25/1955 in light of the Town providing responses on July 8, 2025 and July 10, 2025. Unsatisfied with the Town’s responses, Ms. Zhong petitioned this office and this appeal, SPR25/1994, was opened as a result. While this appeal was pending, I learned the Town also provided a response on June 3, 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. The Town’s June 3rd, July 8th, and July 10th Responses In its June 3, 2025 response, the Town responded to each item of the request as follows: [1] See the Town Charter and Town Bylaws located on the Town’s website. No other records exist. [2] See the Finance and Warrant Commission 2025 Town Meeting Book located on the Town’s website[.] [3] 0[.] [4] These documents will not be provided as they are protected under the privacy exemption[.] [5] No such records exist[.] In its July 8, 2025 response, the Town cited Exemption (c) of the Public Records Law to withhold certain responsive records. The Town also stated, “[p]lease note that Ms. Zhong has

Dottie Powers SPR25/1994 Page 3 July 23, 2025 submitted two similar public records requests in the past… As clarified in our prior correspondence, the authority to appoint members to the Finance and Warrant Commission rests exclusively with the elected Town Moderator [who] does not maintain an office at Town Hall, and all appointments are made solely at his discretion, as outlined in the Westwood Town Charter[.]” In its July 10, 2025 response, the Town provided a link to “[a]ll information regarding [the Town Moderator’s] duties and appointments,” and stated, “[p]lease reach out directly to the Moderator.” Current Appeal In her appeal petition, Ms. Zhong stated, “I wish to reiterate that my request does not seek any personal or exempt information – only administrative records necessary to understand how appointments are made and whether the Town is upholding the transparency and fairness outlined in its own Charter[.]” It appears that Ms. Zhong is only appealing the Town’s withholding of responsive records under Exemption (c). 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 the second clause of 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 clause 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 the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family

Dottie Powers SPR25/1994 Page 4 July 23, 2025 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 clause 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 July 8, 2025 response, the Town recited the language of Exemption (c) and stated, “…certain exemptions apply to Ms. Zhong’s requests.” Based on the Town’s response, it is unclear how the Town may withhold responsive records pursuant to Exemption (c) of the Public Records Law. In this case, the Town has not established how the withheld records, in their entirety, contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it is uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. The Town must also provide information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Consequently, the Town has not met its burden to withhold responsive records under Exemption (c) of the Public Records Law. Additionally, the Town did not identify the responsive records it possesses that it intends to withhold. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co., 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Therefore, the Town must identify the records it has in its possession that it intends to withhold Exemption (c). It should be noted that any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Ms. Zhong 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. Ms. Zhong may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Dottie Powers SPR25/1994 Page 5 July 23, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Ada Zhong