Newman, Esq., Rebecca v. Milton, Town of - Town Administrator (SPR 20150158)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 13,2015 SPRlS/158 Mr. Geoffrey P. Wermuth, Esq. Murphy, Hesse, Toomey & Lehane, LLP Crown Colony Plaza 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Wermuth: In response to a citizen complaint regarding an employee of the Town of Milton (Town), the Town engaged Robert J. Pomeroy, Esq., of Pomeroy Resources, Inc. (Pomeroy) to conduct an investigation, resulting in a written report (Pomeroy Report). Michael Moxley requested a copy of the Pomeroy Report. The Town denied this request citing the first clause of Exemption (c) of the Public Records Law. G. L. c. 4, § 7 (26) (c). Marshall and Rebecca Newman of Newman & Newman, P.C., (Newman) petitioned this office on Mr. Moxley's behalf. The result of this appeal was an order to release the report, or provide a more specific response to support its Exemption (c) claim. See SPR14/598 Determination ofthe Supervisor ofRecords (November 26, 2014). In compliance with this order the Town provided a response explaining that the Town received a citizen complaint concerning a particular Town employee, and as a result of the complaint, the Town hired Pomeroy to conduct an investigation and issue a written report. The Town and your firm as Legal Counsel to the Town reviewed and discussed the contents of the report and used the report and its findings to render an employment decision regarding the employee, resulting in the termination of the employee's employment with the Town. Newman appealed this response, resulting in the present appeal. Subsequent to an April 10, 2015 administrative order the Town provided anunredacted copy of the Pomeroy Report to this office for an in camera review. See 950 C.M.R. 32.08(6). This office will return the Pomeroy Report upon completion of this appeal under separate cover. I wish to thank your office and the Town for your cooperation during this investigation. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/p re

Mr. Geoffrey P. Wermuth, Esq. SPR15/158 Page Two July 13,2015 Status of the Requester Both Mr. Moxley and Newman are advised that the Public Records Law does not distinguish between requesters. Their status does not afford any greater right of access to the record than any other individual in the public realm. Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requesting party. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Accordingly, any personal interest by Mr. Moxley or Newman will play no role in determining the public nature of the Pomeroy Report. Exemption (c) The Town maintains that both the first and second clause of Exemption (c) permits withholding of the entire Pomeroy Report. 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. The first claus~ of Exemption (c) is applicable to certain personnel records. The Supreme Judicial Court (Court) 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 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. During discussions with this office while reviewing the consultant's report in camera you explained that the report consists of factual and evaluative information related to the performance of the employee investigated, and contains information regarding other employees and family members of employees who provided information to the investigator. The whole of the report concerning the actions and performance of the employee who was the subject of the complaint and investigation was used to render a decision on whether that employee would remain in the employ ofthe Town.

Mr. Geoffrey P. Wermuth, Esq. SPR15/158 Page Three July 13, 2015 Clearly portions of the Pomeroy Report contain information that may be redacted pursuant to Exemption (c) as personnel information; however, the statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979). Accordingly, I find that portions of the Pomeroy Report that do not specifically relate to "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee" must be disclosed. Your response to Newman states that the second clause of Exemption (c) also applies to withhold the report. It is the Town's claim that the report is exempt under the privacy clause because Mr. Moxley's complaint attacks the reputation and character of the subject of the report. The Town believes the report constitutes an "intimate detail" and that the public interest in disclosure is greatly outweighed by the privacy interest associated Accordingly, whereas the Town has not overcome the presumption that the nonexempt portions of the requested records are public, it is hereby ordered, within ten (10) days of this order, to provide Newman and Mr. Moxley with the Pomeroy Report, redacted in a manner consistent with the Public Records Law and this order. If the Town maintains that any portion of the Pomeroy Report is exempt from disclosure it must, within ten (1 0) days provide to Newman and Mr. Moxley a written explanation, with specificity, how a particular exemption applies to each record. 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. 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. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. illiams cc: Ms. Annemarie Fagan Ms. Rebecca Newman, Esq.