Timothy A. Toomey v. Rowley, Town of - Town Administrator (SPR 20160796)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18, 2016 SPR16/796 Mr. JosephS. Fair, Esq. KP Law, P.C. 101 Arch Street Boston, MA 02110 Dear Attorney Fair: I have received the petition of Timothy Toomey appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Toomey requested a copy of any investigation finding reports related to the Town's Water Department from 2011 through 2016. As the Town's Legal Counsel, you responded to Mr. Toomey on May 20, providing him via email with a copy of a report generated by the Town Administrator, and informing him that the Town is withholding two (2) additional reports in their entirety pursuant to Exemptions (c) and (f) ofthe Public Records Law. G. L. c. 4, § 7 (26) (c), (f). The Town's May 20 response was the subject of a prior appeal by Mr. Toomey. See Supervisor of Records Determination (July 11, 2016). In my determination, I ordered the Town to provide a revised written response to further explain the exemption claims. On August 12, you provided Mr. Toomey with a more detailed response concerning the exemption claims, and copying this office on the response. Mr. Toomey appealed your August 12 response, and appeal SPR16/796 was opened. 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, § lO(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). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. JosephS. Fair, Esq. SPR16/796 Page2 October 18, 2016 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(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. Exemption (c) In the August 12 letter, you indicated that the Town is withholding the reports pursuant to both the first and second clauses 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) 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). First clause ofE xemption (c)

Mr. Joseph S. Fair, Esq. SPR16/796 Page 3 October 18, 2016 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. Your May 20 and August 12 letters explained that the reports relate to the investigation of former Water Department employees for possible misconduct. It is the Town's position that these records are protected in their entirety as personnel records and information under the first clause of Exemption (c) and the holding in Wakefield, because it is information used by the Town to render employment decisions on the subjects of the investigation. I find the Town has met its burden in withholding information that is useful in making employment decisions regarding specifically identified employees of the Town. Second clause ofE xemption (c) The Town has also stated in its responses and in discussions with this office regarding this appeal and the prior appeal that there is also information contained in the reports that there remain unresolved allegations, even after investigation, that if disclosed to the public may damage the reputation of the subjects of the investigations. The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Examples of"intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family fights and reputation. Id. at 626 n.2 (emphasis added). Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979). The privacy clause of Exemption (c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information.

Mr. JosephS. Fair, Esq. SPR16/796 Page4 October 18,2016 In this appeal, you posit that public release of records containing unresolved allegations regarding specifically identified individuals no longer employed by the Town could prevent them from seeking employment elsewhere or damage their reputation and standing in the community. Damage to one's reputation from unresolved allegations is the type of information that the privacy clause seeks to withhold under the second clause of Exemption (c). Therefore, I find that the Town may withhold the reports pursuant to both the first clause and second clause of Exemption (c). Exemption (f) The Town has also withheld the reports in their entirety pursuant to Exemption (f) of the 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). The subjects, witnesses and complainants involved in the investigation and who are named and detailed in the reports are being withheld. If identities and identifying information of these individuals were to be disclosed to the public, it is likely in future that individuals will be afraid to come forward for fear of intimidation or retaliatory action. Ordinarily, records can be redacted to protect the identities and identifying information of those who come forward with information, such as victims, witnesses and complainants; however, in this appeal, there is no way to redact the reports to protect the subjects of the records. In its responses as well as in telephone discussions with this office, the Town states that Mr. Toomey served for many years on the Town's Board of Water Commissioners and has a considerable amount of familiarity with present and former Water Department personnel. The Town states that the Supreme Judicial Court has ruled that "[t]he inquiry as to what constitutes identifying information regarding an individual. .. must be considered not only from the

Mr. JosephS. Fair, Esq. SPR16/796 Page 5 October 18, 2016 viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Globe Newspaper Company v. Boston Retirement Board, 388 Mass. 427, 438 (1983). The Town suggests that the reports cannot be redacted in such a way that would protect from identification ofthe names of voluntary witnesses and/or complainants because this information is inextricably intertwined with other information in the responsive records. Thus, the Town has withheld the reports in their entirety pursuant to both Exemption (c) and (f). I find the Town has met its obligation of specificity with respect to its application of Exemptions (c) and (f) to the withheld records. Conclusion Accordingly, whereas, Mr. Toomey has been provided with one responsive report and further whereas the Town has properly withheld the additional two (2) reports pursuant to both clauses of Exemption (c) and Exemption (f) of the Public Records Law. I find that the Town has now met its statutory and regulatory obligations under the Public Records Law, this appeal is closed. If any party is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). cc: Mr. Timothy Toomey Ms. Deborah Eagan