Colman Herman v. Cohasset, Town of - Town Manager (SPR 20170375)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 7, 2017 SPR17/375 Christopher G. Senior Town Manager Town of Cohasset 41 Highland A venue Cohasset, MA 02025 Dear Mr. Senior: I have received the petition of Colman Herman appealing the response of the Town of Cohasset (Town) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested a copy of a settlement agreement between the Town and a specific individual. Previous appeal This request was the subject of two (2) previous appeals. See SPR 17/251 Determination of the Supervisor of Records (March 3, 2017); SPRl 7/338 Determination of the Supervisor of Records (March 21, 2017). In my March 3rd determination I found the redaction on page three of the requested documents was properly made under the personnel clause of Exemption (c ). However, with respect to the redaction on page four, I found portions of the withheld information had not been supported by the Town's exemption claims. The Town subsequently provided a less-redacted version of the responsive settlement agreement. Mr. Herman appealed and SPRl 7/338 was opened. I closed SPRl 7/338 with the proviso that the Town provide Mr. Herman a supplemental response that clarifies the Town's position regarding the applicability of exemptions to the remaining redactions. The Town responded in an email dated March 23, 2017. Mr. Herman appealed the Town's redactions based on "future employment decisions" and SPRl 7 /375 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, § lOA(d); 950 C.M.R. 32.03(4). "Public 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

Christopher G. Senior SPR17/375 Page 2 April 7, 2017 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. Current appeal In his appeal petition, Mr. Herman refers to the Town's February 24, 2017 response in which it references "future employment decisions" as a basis for the redactions. Mr. Herman indicates that despite the Town's March 23rd response, "Mr. Senior still does not explain why the 'future employment decisions' information has been redacted. Accordingly, please order Mr. Senior to explain this." Redaction in section 6 oft he agreement In its March 23rd response, the Town explains "[t]he redacted material in section 6 of the agreement has been determined by Town Counsel, and affirmed by the Supervisor of Records, to fall with[in] Exemption (c) because the material relates to Mr. Coughlin's personnel information and file." It should be noted that this redaction in "section 6" of the agreement is the same redaction I found to be proper in my March 3rd determination. This redaction fell within one of the specific categories of records that may be redacted under the first clause of Exemption (c ) . See Globe Newspaper Co v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Therefore, I will consider this portion of the appeal closed. Redaction in section 8 oft he agreement The Town also explains "[t]he redacted material in section 8 of the agreement has been determined by Town Counsel, and affirmed by the Supervisor of Records, to fall with[in] Exemption (c) because the material pertains to Mr. Coughlin's medical condition and personal health." In a supplemental response dated April 5, 2017, Louis M. Ross, Esq. of Deutsch Williams indicates "with respect to the redacted portions of section 8 of the settlement agreement at issue, the [Town] clearly cited the medical files or information exemption within [E]xemption (c) .... " Attorney Ross continues by stating "[i]f Mr. Herman's most recent appeal somehow pertains to the applicability of the medical files or information exemption within [E]xemption (c ), then as discussed yesterday, we would be more than happy to work with you and Mr. Herman, although

Christopher G. Senior SPRl 7/375 Page 3 April 7, 2017 we are not certain how we might elaborate on our prior response that the material was redacted because it relates to Mr. Coughlin's medical condition and personal health." In light of the Town's March 23rd response and Attorney Ross's April 5th email, it is clear the basis of the redactions in section 8 do not involve "future employment decisions" information. IfMr. Herman objects to the Town's usage of the medical provision of Exemption (c), he may appeal this portion of the Town's response within ninety (90) days. See 950 C.M.R. 32.08(1). If the Town is interested in scheduling a training session on the Public Records Law, please contact the Public Records Division at (617) 727-2832. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman Louis M. Ross, Esq.