Kelly M. Kelly v. Townsend, Town of - Town Administrator (SPR 20170352)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 31, 2017 SPR17/352 James M. Kreidler, Jr. Town Administrator Town of Townsend 272 Main Street Townsend, MA 01469 Dear Mr. Kreidler: I have received the petition of Kelly M. Kelly appealing the response of the Town of Townsend (Town) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Kelly requested a copy of an audio recording created by the Town's Police Chief, Robert Eaton during a discussion with you, as Town Administrator and a member of the Board of Selectmen. Initially, on March 3rd, the Town denied Ms. Kelly's request pursuant to Exemption (e) of the Public Records Law. Ms. Kelly petitioned the Supervisor of Records, and an appeal was opened. Prior appeal and Basis of the Current Appeal The requested record was the subject of a prior appeal regarding the Exemption ( e) claim. by the Town to withhold the entire recording. See 17/286 Supervisor of Records Determination (March 17, 2017). In my determination, I found that the Town had not met its burden in withholding the recording pursuant to Exemption ( e ), as the recording was shared with others. I also found that the Town may withhold from disclosure any personal notes that were not shared with others and were not part of such a government file under Exemption (e). The Town was ordered to provide Ms. Kelly with another response to the request. i\ By email on March 1 you provided Ms. Kelly with a response that states, "[W]hereas the tape was shared, Exemption (e) is no longer applicable. However, the Town now asserts that Exemptions (c) personnel, (d), and (f) of the Public Records Law apply to withhold the recording in its entirety. G. L. c. 4, §§ 7(26)(c), (d) and (f). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

James M. Kreidler SPRl 7/352 Page 2 March 31, 2017 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, § lOA(d); 950 C.M.R. 32.03(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, § 1O (b )(iv), 950 C.M.R. 32.06(3); see also Dist. 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (c) The Town is withholding the audio recording because a portion of the record is personnel information and may be withheld 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). 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.

James M. Kreidler SPRl 7/352 Page 3 March 31, 2017 It is my understanding that this portion of the recording is useful in evaluating and making an employment decision regarding Chief Eaton and whether to renew his employment with the Town. Accordingly, I find that the Town may withhold the portion or portions of the recording that the Town found to be useful in considering the employment status of Chief Eaton pursuant to the personnel clause of Exemption (c ) of the Public Records Law. Exemption (d) The Town is withholding another portion of the recording pursuant to Exemption (d ) in the Public Records Law. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause 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 of Human 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 Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.). ih Your March 1 email response states, "[P]ortions of the recording involve discussion on policies and procedures involving the Town's Police Department, such as chain of command and deployment of personnel, which policies continue to be worked on." I find that the Town has not met its burden in fully supporting its Exemption ( d) claim concerning any policies or procedures and how the deliberative process could be tainted by release of this information. Exemption (I) The Town is also. claiming that portions of the recording contain discussions of ongoing investigations involving the Town's Police Department or investigations performed by the Police Department, and disclosure at this time would prejudice the investigations. Therefore, the Town is withholding those portions concerning ongoing investigations 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

James M. Kreidler SPRl 7/352 Page4 March 31, 2017 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 Comm'r of Boston, 378 Mass. 281, 290 n.18 (1979). With regard to the Town's Exemption (f) claim, I find that the Town has not supported its claim regarding the portions of the recording that specifically ~relate to any ongoing investigations. The Town has not demonstrated how its investigative efforts may be prejudiced if portions of the recording are publicly released at this time. Order Accordingly, I find that the Town has met its burden of supporting its Exemption (c) claim to withhold the portion of the recording that is personnel information that the Town used to render an employment decision concerning Chief Eaton. However, I also find that the Town has not met its burden of proving that the balance of the recording should be withheld pursuant to Exemptions ( d) and (f). Please be advised that statutory exemptions are narrowly construed and not blanket in nature; any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979); see also G. L. c. 66, § lO(a). The Town is ordered to provide Ms. Kelly with the requested records or a response explaining with specificity how these requested records are not subject to disclosure. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Kelly may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1).

James M. Kreidler SPRl 7/352 Page 5 March 31, 2017 Sincerely, ~~ Supervisor of Records cc: Kelly M. Kelly