Bruce Rohr v. Canton, Town of - Board of Selectmen (SPR 20160326)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 14, 2016 SPR16/326 Mr. William T. Friel Town Administrator Town of Canton Memorial Hall 801 Washington Street Canton, MA 02021 Dear Mr. Friel: I have received the petition of Bruce Rohr appealing the response of the Town of Canton Board of Selectmen (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Rohr requested a copy of the outside audit report titled ."Basketball Program Review" dated February 2, 2012, and the outside audit report titled "Swimming Pool and Skating Rink Operations Review" dated April19, 2012. On January 6 and May 5, 2016, the Town denied Mr. Rohr's request for the audit reports pursuant to Exemptions (d) and the first clause of Exemption (c) of the Public Records Law. The Town provided Mr. Rohr with a second copy of the January 6 denial on May 5, and Mr. Rohr appealed. 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, § 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). 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. William T. Friel SPR16/326 Page 2 June 14, 2016 If there are any fees associated with a 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 fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Public records may not be withheld in their entirety where segregation of exempt material within the content of a record may be accomplished, and the balance of the record may be disclosed. The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). Town's response to Mr. Rohr's request The Town's Legal Counsel, John Richard Hucksam, Jr. of Deutsch Williams Brooks Derensis & Holland, P.C. denied the request on behalf of the Town. Attorney Hucksam writes in his January 6, 2016 email to Mr. Rohr, "[f]or the following reasons both of the documents constitute disciplinary reports that are included in the term "personnel files or information, and also exempt as inter-agency and intra-agency memoranda or letters relating to policy positions being developed by the Town." The response alludes to the privacy exemption, Exemption (c) of the Public Records Law, and also cites specifically the deliberative process exemption, Exemption (d). G. L. c. 4, § 7 (26) (c), (d). Attorney Hucksam's response includes an analysis of cases interpreting Exemption (c) of the Public Records Law. The response does not include any comment regarding Exemption (d). For the reasons stated below I find the Town has failed to overcome the presumption that the responsive records are public records subject to mandatory disclosure. Exemption (c) Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute

Mr. William T. Friel SPR16/326 Page 3 June 14, 2016 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. v. Boston Retirement Bd., 388 Mass. 427,432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." The case cited by Attorney Hucksam to justify nondisclosure related to an investigation of allegation against a particular person. See Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792 (2000). I find the Town has failed to show the connection between Wakefield and the present request, in that this request is for audit reports involving the Town's Recreation Department. The Town has failed to show that it could not redact the documents to omit information related "a specifically named individual" as mandated by the exemption and interpreted by the court in Wakefield. Exemption (d) Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7 (26) (d) Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office ofHuman Services, 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Environmental Protection Agency v. Minlc, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure). The Town has failed to meet its burden of specificity to show how Exemption (d) applies to the responsive records. Order I find the Town has failed to overcome the presumption that the responsive records are public records. Accordingly, the Town is hereby ordered without delay to provide Mr. Rohr with

Mr. William T. Friel SPR16/326 Page4 June 14, 2016 a detailed, written response to his request, prepared in a mann consistent with this order, the Public Records Law and its Regulations. A copy of any such r sponse must be provided to this office. It is preferable to send an electronic copy of ·s re po e to this office at pre@sec. state.ma. us. n mms ervisor of Records cc: Mr. Bruce Rohr