The privacy exemption contained in the Public Records Law was amended in 2020, in a manner that many may have thought was minor at the time, but since has been interpreted to be a major change. M.G.L. c.4, §7, cl.26(c) formerly excluded from public records:
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.
(emphasis added). The exemption now reads:
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….
Tiny word changes in statutory language are of special interest to many lawyers, because they come with the presumption that the Legislature intended to enact a substantive change in meaning, and offer an opportunity to puzzle out the extent of that substantive change. This month, the Secretary of the Commonwealth took up that opportunity with respect to Exemption (c), and released an updated Guide to the Public Records Law, which clarifies the application of the amendment.
Previously, personnel files were categorically exempt from disclosure as public records. Now, however, the updated Guide confirms that each determination under exemption (c) requires a subjective balancing of the seriousness of the invasion of privacy versus the public interest in disclosure. If the public interest “substantially outweighs” the privacy interest, then disclosure is required.
More specifically, the Guide acknowledges that “core categories of personnel information” that are “useful in making employment decisions regarding an employee” may be withheld. For example, courts have held that employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee may be withheld under Exemption (c).
Among other changes, the updated Guide also clarifies that, if a records custodian denies access to or cannot produce the requested records within 10 business days, the custodian is still required to respond to the request within 10 business days, and to inform the requestor of his or her right to appeal.