Decision SPR17/1257

Winthrop Police Department · from StateReference · 4 pages · 224 KB
open the file ↗ · original at the source ↗

The Commonwealth of Massachusetts 
William Francis Galvin, Secretary ofthe Commonwealth 
Public Records Division
Rebecca S. Murray 
Supervisor of Records 
Chief Terence Delehanty
Town of Winthrop -Police Department
3 Metcalf Square 
Winthrop, MA 02152
Dear Chief Delehanty:
September 25, 2017 
SPR17/1257 
I have received the petition of"Ziploc" appealing the response of the Town of Winthrop 
-Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 
950 C.M.R. 32.08(1). Specifically, on June 26, 2017, the requestor asked for "copies of all
records pertaining to the assessment center for deputy chief of police dept." The requestor
mentioned that the records should include "but not limited to final report from assessment center,
audio and or video recordings of assessment center process and written documents provided by 
participants." The Department responded on July 11, 2017, claiming that it would redact certain
portions of the records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, §
7(26)(c). Unsatisfied with the department's response, the requestor petitioned this Office and this .
appeal, SPR17 /1257, was opened as a result. It appears the requestor is only appealing the
Department's claim under Exemption (c) but not the fee estimate. 
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 town 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, § 1 O(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. 
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 
Chief Terence Delehanty 
Page2 
September 25, 2017 
SPR17/1257 
If there are any fees associated with a response a written, good faith estimate must be
provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records
custodian must provide the responsive records. 
The Department's July lf 11 response 
In its July 11th response, the Department indicated that it intends to "withhold from
disclosure, certain responsive records pursuant to Exemption (c) of the Public Records Law.
Specifically, the Town anticipates redacting the scores of the candidates, together with written
submissions by the candidates during the assessment center evaluation process." 
The Department indicated that it was withholding these records under the first clause of
Exemption (c) because in its position "the scores ofthe candidates, together with any documents
submitted by the candidates in support of their applications for the Deputy Chief position
including but not limited to those written submissions made as part of the assessment center
evaluation process, are precisely the types of documents 'that would be helpful in making
determinations regarding hiring and firing,' and the Town may permissibly withhold from
public disclosure pursuant to Exemption (c) .... " 
The Department further indicated that it "anticipates redacting two pronoun references in
the report authored by the Town's assessment center consultant, under both the first and second
clauses to Exemption (c), as disclosure of that information may result in an identification of the
applicant's identity." 
Exemption (c) 
In the Department's July 11th response, it indicated its intent to withhold the records
under the first clause of Exemption (c) of the Public Records Law as personnel information.
Exemption (c) applies to:
personnel and medical files or information; also any other materials or data
relating to a specifically named individual, the disclosure of which may constitute
an unwarranted invasion of personal privacy
G. L. c. 4, §7 (26)(c).
Exemption (c) contains two distinct and independent clauses, each requiring its own
analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). 
First clause 
The first clause creates a categorical exemption for personnel and medical information
that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical 
Chief Terence Delehanty 
Page 3
September 25, 2017 
SPR17!1257 
information that is of a personal nature and relates to a specifically named individual is exempt
from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987). The
Supreme Judicial Court of Massachusetts found that a records custodian may withhold from
disclosure as personnel information records containing information that is "useful in making
employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431
Mass. 792, 798 (2000). 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 the first clause of Exemption (c). Id.
Nevertheless, there is a strong public interest in monitoring public expenditures and
public employees have a diminished expectation of privacy with respect to public employment
matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395
Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an
interest in knowing whether public employees are "carrying out their duties in an efficient and
law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a
result, certain information that is considered personal in the ordinary sense of the word may be
considered part of a public record if relating to an individual's official responsibilities. See
Brogan, 401 Mass. at 306, 309. 
Second Clause 
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.
Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r ofReal Property 
Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case
basis.
The second clause of Exemption (c) 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
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 
Chief Terence Delehanty 
Page 4
September 25, 2017 
SPR17/1257 
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.
I find that the Department's initial July 11th response did not meet its obligation of
properly claiming an exemption and providing the requisite level of specificity to withhold the
records under the Public Records Law to support an exemption claim. The Department is
reminded that Public employees have a diminished expectation of privacy in matters relating to 
their public employment. Brogan, 401 Mass. at 308. Consequently, the public will have greater
access to information that relates to an individual's public employment than to the same
individual's private activities. Hastings & Sons Pub. Co. v. City Treasurer of Lynn, 374 Mass.
812, 818 (1978). Therefore, the Department must explain how the scores and written
submissions are useful in making employment decisions and not subject to public disclosure in
light of the fact that similar information "of police officers being tested for promotion is
commonly displayed on state government websites" as stated by the requestor.
Further, the Department did not explain with specificity under the first and second
clauses of Exemption (c) why it "anticipates redacting two pronoun references in the report
authored by the Town's assessment center consultant." The Department merely stated that 
"disclosure of that information may result in an identification of the applicant's identity" without
explaining with specificity how the first and second clauses of Exemption (c) apply to the
redacted information. Considering the factors in the PET A decision, the Department should
explain how disclosing an unredacted copy of the report will implicate any privacy interests or
result in an unwarranted invasion of personal privacy. I understand a Public Records Division
staff attorney contacted your office about this appeal but was unable to reach you prior to the
issuance of this decision. 
Conclusion 
Accordingly, whereas I find that the Department has not met its burden in proving with
specificity how the requested records may be redacted under Exemption (c); the Department is
hereby ordered to provide the requestor with a revised response to the request, provided in a
manner consistent with this order, the Public Records Law and its Regulations within ten
business days. A copy of any such response must be provided to this office. It is preferable to
send an electronic copy of this response to this office at pre@sec.state.ma.us. The requestor may
appeal the substantive nature of the Department's response within ninety calendar days. 950 
C.M.R. 32.08(1).
cc: "Ziploc" 
Sincerely,
Rebecca S. Murr~ Supervisor of Records