Todd Feathers v. Dracut, Town of - Town Manager (SPR 20160448)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 12, 2016 SPR16/448 Mr. James A. Hall Town of Dracut Town Counsel Qua, Hall, Harvey & Walsh Attorneys-at-Law 25 Fletcher Street Chelmsford, MA 01824 Dear Attorney Hall: I have received the petition of Todd Feathers of The Lowell Sun appealing the response of the Town ofDracut (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Feathers requested all communications from June 1 to the present time (June 14, 2016, date of the request) between attorneys representing a specifically named police officer and the Town. The Town denied the request pursuant to Exemptions (c) and (d) ofthe Public Records Law. Mr. Feathers appealed the response. In his petition Mr. Feathers stated his belief that the responsive record consisted of a single document from the police officer informing the Town of their intent to represent the officer in a grievance matter. 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 assist in requesting and responding to requests for public records I refer you to our publication, A Guide to the Massachusetts Public Records Law. This document is also 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. James A. Hall, Esq. SPR16/448 Page2 June 12, 2016 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 below for further information. Exemption (c) In your letter, you indicate the Town's intent to withhold a demand letter pursuant to the first clause ofExemption (c) ofthe Public Records Law. 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 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." Id. at 434. The Supreme Judicial Court of Massachusetts has found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Id. Mr. Feathers asserts that the single withheld record is a letter from counsel notifying the Town of counsel representation of a Town officer in a grievance matter. I find the Town has failed to meet its burden to show how such a notice would be exempt in its entirety pursuant to the first clause of Exemption (c), as it is unclear how such a notice would be "useful in making employment decisions regarding an employee." Exemption (d) In your letter, you contend that the demand letter the Town received from the specifically named police officer's attorney is being withheld from disclosure pursuant to Exemption (d) of the Public Records Law. Exemption (d) applies to:

Mr. James A. Hall, Esq. SPR16/448 Page 3 June 12, 2016 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) 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). The Town also states that the Town is deliberating what action will be taken and how the Town will respond with regard to the demand letter. The Town posits that records concerning on-going litigation fall within Exemption (d), and that the Supervisor of Records may decline to accept an appeal from a requester where the records in question are the subjects of disputes in active litigation, administrative hearings or mediation. See Lafferty v. Martha's Vineyard Comm'n, 17 Mass. L. Rep. 50 (Mass. Super. 2004); see also 950 C.M.R. 32.08(2). Mr. Feathers asserts that the single withheld record is a letter from counsel notifying the Town of counsel representation of a Town officer in a grievance matter. I find the Town has failed to meet its burden to show how such a notice would be exempt in its entirety pursuant to Exemption (d), as it is unclear what sort of deliberative process exists with respect to such a notice. Order I find the Town has failed to respond to a request for public records. Accordingly, the Town is hereby ordered, within ten (10) days of this order, to provide Mr. Feathers with a revised response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. Shawn A. Williams Supervisor of Records cc: Mr. Todd Feathers