Matta, Ronald v. Brockton, City of - Law Department (SPR 20150389)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division September 11, 2015 Shawn A. Williams Supervisor ofR ecords SPRlS/389 Ms. Katherine M. Feodoroff, Esq. Assistant City Solicitors City of Brockton Law Department Brockton City Hall 45 School Street Brockton, MA 02301 Dear Attorney Feodoroff: I have received the petition of Ronald Matta appealing the response of City of Brockton (City) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Matta requested a copy of the settlement agreement regarding the continued employment of a specifically named individual. The City denied his request, claiming that the responsive record is a personnel record exempt from disclosure pursuant to first clause of Exemption (c) of the Public Records Law. G. L. c. 4, § 7 (26) (c). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(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 City claims that the responsive settlement agreement between the City and a specifically named individual is exempt under the first clause of Exemption (c) of the Public Records Law because the record is a personnel record. Therefore, Exemption (c) merits consideration. Exemption (c) permits the withholding of: Personnel and medical files or information; also any other materials or data OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Katherine M. Feodoroff, Esq. SPR15/389 Page Two September 11, 20 15 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) Settlement agreements are public records A 2013 Superior Court decision provides further guidance with respect to the public nature of separation, severance, transition or settlement agreements, as well as the types of personnel information included within such agreements that may be exempt from disclosure. See Globe Newspaper Company, Inc. v. Executive Office of Administration and Finance, et g_l, Suffolk Superior Court Civil Action No. 11-01184-A (June 14, 2013), 34-35. The parties in the above-captioned matter agreed to refrain from further appeal via a letter agreement dated December 17, 2013. In the Globe decision, the court held that records of separation, severance, transition or settlement agreements are considered public records subject to mandatory disclosure pursuant to the Public Records Law (G.L. c. 66, § 10). While the Globe decision may permit the City to redact certain information included within the record as personnel information, the decision does not permit the City to withhold the responsive record in its entirety pursuant to the first clause of Exemption (c). As a result, the City failed to meet its burden of explaining with specificity how the settlement agreement, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, the City failed to inform Mr. Matta ofhis right to appeal a denial of access to public records. The Public Records Access Regulations state that a custodian of records must notify a requester of his administrative remedies in the event the custodian denies access to the requested records. 950 C.M.R. 32.08(1). Accordingly, whereas the City has not overcome the presumption that the requested record is public, the City is hereby ordered, within ten (1 0) days of this order, to provide Mr. Matta with the requested settlement agreement. If the City maintains that any portion of the settlement agreement is exempt from disclosure it must, within ten ( 10 ) days provide to Mr. Matta a written explanation, with specificity, how a particular exemption applies to withhold any portion of the 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.

Ms. Katherine M. Feodoroff, Esq. SPR15/389 Page Three September 11,2015 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 ofrecords shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. cc: Mr. Ronald Matta