Christine Smith v. Hubbardston, Town of - Town Administrator (SPR 20160681)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/681 Ms. Carolyn M. Murray, Esq. KP Law, P.C. 10 1 Arch Street Boston, MA 02110 Dear Attorney Murray: I have received the petition of Christine Smith a reporter for The Gardner News appealing your response on behalf of the Town of Hubbardston (Town) in your capacity as the Town's Legal Counsel to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Smith requested a copy of: 1. All money recorded by the Town as being paid to the Town by a specifically-named person from January 2015 to July 21, 2016, 2. The agreement reached between the Town and a specifically-named person, and 3. The Town's report from a financial audit performed after discovering the misconduct by a specifically-named person. Previous appeal Request 1 was the subject of a previous appeal, resulting in the determination from this office that the Town had failed to meet its burden of specifically withholding the records under the Public Records Law. See Supervisor ofRecords determination, SPR16/542 (August 8, 2016). The Town was ordered to provide a revised response to Request 1. In response to my order, on August 16, 2016 you responded on behalf of your client, the Town of Hubbardston and provided the records responsive to Ms. Smith's Request 1. Basis ofthis appeal, SPRJ6/681 While Ms. Smith did not provide a copy of her original public records request to the Town regarding the records responsive to her Request 2 and Request 3, the Town has provided her with the August 16 written response for those requested records. Ms. Smith is reminded that in order to appeal to the Supervisor, "such appeal shall be in writing, and shall include a copy of the letter by which the request was made and, if available, a copy of the letter by which the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/p re

Ms. Carolyn M. Murray, Esq. SPR16/681 Page 2 September 16, 2016 custodian responded. The Supervisor shall accept an appeal only from a person who had made his or her record in writing." 950 C.M.R. 32.08(2). In your August response, you claim that Request 2 for the agreement between the Town and a specifically-named person is being withheld pursuant to Exemption (c), and that Request 3 for the report on the financial audit is being withheld pursuant to Exemptions (c) and (f). Ms. Smith appealed the Town's denial for records responsive to Requests 2 and 3. 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, § i 0(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) -settlement/severance agreement and audit report You indicated that the Town is withholding the agreement between the Town and a specifically-named former employee and the financial audit report as "personnel" records pursuant to the first clause of Exemption (c) of the 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) Separation agreements are generally considered public records, subject to redaction A 2013 Superior Court decision affirms the presumption that separation, severance, transition or settlement agreements are public records, subject to redaction. See Globe Newspaper Company, Inc. v. Executive Office of Administration and Finance, et al, 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.

Ms. Carolyn M. Murray, Esq. SPR16/681 Page 3 September 16, 2016 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 Town to redact certain information included within the record as personnel information, the decision does not permit the Town to withhold the responsive record in its entirety pursuant to the first clause of Exemption (c). It is also important to note that a custodian is not permitted to withhold the identity of the person subject to the settlement or severance agreement pursuant to the first clause ofExemption (c). Accordingly, I find that, based upon the holding by the Superior Court and past precedent from this office the Town erred in withholding any responsive severance or separation agreement pursuant to Exemption (c) of the Public Records Law. Audit report The Town is withholding the report from the financial audit the Town performed pursuant to the first clause of Exemption (c), as personnel. Your August 16 response states that report is exempt as a personnel record because the record forms the basis upon which an employment decision regarding the specifically-named individual was based. I find that the Town has not met its burden of proving that the audit report is exempt in its entirety as a personnel record. Exemption (/) Your response also states that the audit report is exempt pursuant to Exemption (f) ofthe Public Records Law. Exemption (f), the "investigatory" exemption, permits the withholding of: investigatory materials necessarily compiled out of the public view by law · enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7 (26) (f) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner ofBoston, 378 Mass. 281,290 n.18 (1979).

Ms. Carolyn M. Murray, Esq. SPR16/681 Page4 September 16, 2016 You state, in your response, that due to the process of prosecution of the specifically named individual by the Worcester County District Attorney (District Attorney), premature disclosure of the audit report could impede the prosecution. The Public Records Law states that "there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10 ( c). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995). I find that the Town has not met its burden of proving how release ofthe audit report by the Town, even in a redacted format, could impede the prosecution by the District Attorney. Order I find the Town has failed to properly respond to a request for public records. Accordingly, the Town is hereby ordered, within ten (10) days ofthis order, to provide Christine Smith a revised response to her request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any response must be provided to this office. It is preferable to send an electronic copy of this response to this pre@sec.state.ma.us. cc: Ms. Christine Smith Ms. Raeanne Siegel, Interim Town Administrator