Newman, Esq., Rebecca v. Milton, Town of - Town Administrator (SPR 20140598)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords November 26, 2014 SPR14/598 Ms. Annemarie Fagan Town Administrator Town of Milton 525 Canton A venue Milton, MA 02186 Dear Ms. Fagan: I have received the petition of Marshall F. Newman, Esq. on behalf of his client Michael F. Moxley appealing the response of the Town of Milton (Town) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Moxley requested a copy of a report prepared for the Town by Robert J. Pomeroy. The Town denied Mr. Moxley's request claiming that the responsive report is a personnel record pursuant to Exemption (c) of 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, § lO(c); 950 C.M.R. 32.08(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, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (c) The Town claims that the Pomeroy Report is exempt in its entirety pursuant to the personnel clause of Exemption (c). Therefore, the first clause of Exemption (c) merits consideration. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Annemarie Fagan SPR14/598 Page Two November 26,2014 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) 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. ofWakefield, 431 Mass. 792, 798 (2000). The Court defined those records w~ich 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. I find that the Town has not met its burden of proving that the entire Pomeroy Report is personnel information which is exempt pursuant to Exemption (c), as its response is simply a blanket denial. In a letter to this office Attorney Newman described the report as an investigatory document related to a complaint filed by Mr. Moxley against the Town's Planning Director. Accordingly, the Town is hereby ordered, within ten (10) day ofthis order, to provide Attorney Newman with the requested record. If the Town maintainsthat any portion ofthe responsive record is exempt from disclosure pursuant to Exemption (c), it must, within ten (1 0) days provide to Attorney Newman and this office a written explanation, with specificity, how Exemption (c) applies to withhold the Pomeroy Report. See G. L. c. 66, § 10(c); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857(1995). T is appeal is now closed. cc: Mr. Marshall F. Newman, Esq. Mr. John Flynn, Esq.