Stephen P. Knight v. Brockton, City of - Law Department (SPR 20160710)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& co1'ds September 16, 2016 SPR16/710 Ms. Katherine M. Feodoroff, Esq. Assistant City Solicitor ·· City of Brockton Law Department Brockton City Hall 45 School Street Brockton, MA 02301 Dear Attorney Feodoroff: I have received the petition of Stephen Knight appealing the response of the City of Brockton-Law Department (City) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Knight requested "the settlement [a ]greement between the City and" a specifically identified individual. Settlement agreements are public records, subject to redaction Although certain information within records of separation, severance, transition or settlement agreements are considered public records subject to mandatory disclosure, portions of information contained in the agreements that are "useful in making employment decisions regarding an employee" are entitled to be withheld from mandatory disclosure. See Globe Newspaper Company, Inc. v. Executive Office of Administration and Finance, Suffolk Superior Court Civil Action No. 11-01184-A (June 14, 2013), 35, 41. In a response dated June 16, 2016 the City denied Mr. Knight's request, explaining that the responsive agreement is not a settlement agreement and is exempt as a personnel record pursuant to the first clause of Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). The City further explains the responsive record is not a settlement agreement as the subject of the agreement "did not receive 'settlement payments' or 'other financial disbursements' as a consequence ofthe agreement." Previous appeals This request was the subject of previous appeals. See SPR15/314 Determination of the Supervisor ofRecords (June 26, 2015; January 8, 2016; May 3, 2016); SPR15/550 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Katherine M. Feodoroff, Esq. SPR16/710 Page 2 September 16, 2016 Determination ofthe Supervisor ofRecords (August 18, 2016). SPR15/314 concerned Mr. Knight's request for the absentee records of a specifically identified individual as well as reasons for the absences, including the reasons for his administrative paid leave. The City determined it had three (3) potentially responsive records: (1) a Notification of Personnel Action Form; (2) an attendance calendar for fiscal years 2013, 2014, and 2015; and (3) an agreement by and between the City and the specifically named employee dated December 19, 2012. In my determination dated January 8, I found the City may withhold the Notification of Personnel Action Form and the agreement under the personnel clause of Exemption (c). I declined to reverse this finding in my May 3 determination. Subsequently, on June 16, 2016 Mr. Knight requested only "the settlement [a]greement between the City and [a specifically identified individual]." The June 16 request was the subject ofSPR16/550 and is the subject ofthis appeal (SPR16/710). In my August 18 determination, I ordered the City to provide this office with an unredacted copy of the responsive record for in camera inspection. My authority to require documents be submitted for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6); see also G.L. c. 66, § 1. The City complied with this order and I would like to thank the City for its cooperation. The City's June 16 response In your June 16letter, you claim the agreement between the City and the employee may be withheld under the personnel clause of Exemption (c) of the Public Records Law. Exemption (c) permits the withholding of: 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). Based on the City's response, only the first clause of Exemption (c) is applicable to this determination. 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 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. Sch. Comm., 431 Mass. 792, 798 (2000). For example, "employment applications, employee work evaluations, disciplinary

Ms. Katherine M. Feodoroff, Esq. SPR16/710 Page 3 September 16, 2016 documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Id. In his appeal petition to this office, Mr. Knight cites multiple cases to support his argument for disclosure including Champa v. Weston Pub. Sch., 473 Mass. 86 (2015) and Hayes v. Bos. Pub. Health Comm'n, No. 11-11859-MLW, 2013 U.S. Dist. LEXIS 144698, at *1 (D. Mass. Oct. 7, 2013). In Champa, the Supreme Judicial Court (SJC) found that settlement agreements relevant to a specific request that is the subject of that case qualify as "education records" under as the Family Educational Rights and Privacy Act (FERP A) as it operates through Exemption (a) of the Public Records Law. Champa, 473 Mass. at 87. The SJC also found that although the agreements may contain information that is an "unwarranted invasion of personal privacy" under the second clause of Exemption (c), they may be redacted "to remove personally identifiable information," after which they become subject to disclosure. Id. In Hayes, a U.S. Magistrate Judge Judith Gail Dein did not make a determination as to whether the relevant settlement agreements should be disclosed; instead, she found that such a determination "should be made at the administrative level, or if necessary by the state courts." Hayes, 2013 U.S. Dist. LEXIS 144698, at *4. However, Judge Dein opined that information within the agreement "that would not only be useful, but would likely also prove critical, to any employment decisions" may be withheld as personnel information exempt from disclosure under Exemption (c). See id. at *18-19. I find the decisions in Champa and Hayes are not relevant to the present matter as the present matter relates to an agreement that the City states is not a settlement agreement. Accordingly, any analysis of the withheld record as a settlement agreement is misplaced. Mr. Knight also argues the City should provide a copy of the "requested settlement agreements, after all personally identifying information is redact[ ed]." The SJC has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). In his request, Mr. Knight reveals the name of the individual who is the subject of the record; therefore it is not possible to withhold the subject's identity by merely redacting identifying information within the record. It is again important to note at this juncture that the City asserts the responsive record is not a settlement agreement. Accordingly, as with the cases above Mr. Knight's reference to Globe Newspaper is misplaced. Conclusions In light ofthe City's June 16 response and my in camera inspection of the record, I find the City has met its burden of explaining how the agreement between the City and the employee is a disciplinary document that is useful in making employment decisions.

Ms. Katherine M. Feodoroff, Esq. SPR16/710 Page4 September 16, 2016 Accordingly, whereas the withheld agreement is not a settlement agreement, but is a document related to a personnel matter associated with a specifically identified person, I find the City may withhold this record under the personnel clause of Exe ption (c). See Wakefield, 4 31 Mass. at 798. cc: Mr. Stephen Knight