Mooney, Eileen v. Great Barrington, Town of - Department of Public Works (SPR 20140206)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May29, 2014 SPR14/206 Ms. Eileen W. Mooney Editor The NEWSletter P.O. Box 567 Housatonic, MA 0123 6 Dear Ms. Mooney: I have received your petition appealing the March 21, 2014 response of the Town of Great Barrington (Town) to your request for a public record. G. L. c. 66, § 10(b) (Supervisor of Public Records has authority to resolve public records appeals); see also 950 C.M.R. 32.08(2) (appeal process). Specifically, you requested a copy of the detailed summary of the Board of Selectmen's performance evaluation of Town Manager Jennifer Tabakin. In his March 21, 2014letter, Brian M. Maser, Esq., of Kopelman and Paige, P.C., Legal Counsel to the Town informed you that the performance evaluation is exempt pursuant to Exemption (c) ofthe Public Records Law. You informed this office that you were provided with this same type of record during the former Town Manager's tenure, and you submitted the record to this office for review. Exemption (c) The Town withheld the performance evaluation of the current Town Manager, Ms. Tabakin as personnel information pursuant to Exemption (c). Exemption (c) serves to exempt from public disclosure: 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) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Eileen W. Mooney SPR14/206 Page Two May 29,2014 Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co., 388 Mass. at 432-34. Only the first clause of Exemption (c) is applicable to this determination. The Supreme Judicial Court (Court) has held that personnel information which is "useful in making employment decisions regarding an employee" is sufficiently personal and may be withheld pursuant to the first clause of Exemption (c). Wakefield Teacher's Ass 'n v. School Comm. of Wakefield, 431 Mass. 792, 798 (2000). The Court defined those records which may be withheld as personnel information to include, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee." Id. at 798. Moreover the Superior Court's decision in District Attorney for the Northern District v. Wayland School Committee, 24 Mass. L. Rep. 251; Mass. Super LEXIS 185 (2008) also serves to properly withhold performance evaluations as personnel under Exemption (c). During a discussion with an attorney on my staff, Attorney Maser explained that while the exemptions are discretionary to the custodian and while the former Town Manager voluntarily provided you with his 2012 performance evaluation, Town Manager Tabakin has exercised her right to claim an exemption on her performance evaluation. The records that you requested were used to render an employment decision on Town Manager Tabakin's performance in her position with the Town. The Town has claimed that the holding in Wakefield support its theory that the responsive performance evaluation may be withheld pursuant to the personnel clause of Exemption (c). Accordingly, the Town has properly withheld the performance evaluation under the personnel clause ofExemption (c). iams Supervisor of Records cc: Mr. Brian M. Maser, Esq. Ms. Jennifer Tabakin, Town Manager