Kelly M. Kelly v. Townsend, Town of - Town Administrator (SPR 20170507)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 26, 2017 SPR17/507 James 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 Administrator (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32:08(1). Specifically, Ms. Kelly requested a copy of an audio recording made by an identified employee of the Town. The Town provided Ms. Kelly with a copy of the audio recording redacted pursuant to Exemption(c) of the Public Records Law. Ms. Kelly appealed, indicating in her April 13, 2017 petition to the Supervisor of Records that she did not believe the audio tape was properly redacted. · Prior appeals The responsive record was the subject of two prior appeals and initially withheld in its entirety by the Town pursuant to Exemptions (e), (c), (d) and (f) of the Public Records Law. See SPRl 7/286 and SPRl 7/352 Supervisor of Public Records Determinations (March 17, 2017 and March 31, 2017). ih In my March 31st determination, I found that the Town's March 1 response did not meet the burden of specificity in withholding the recording pursuant to Exemptions (d ) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(d) and (f). I did, however, find that the Town did meet its burden of withholding portions of the record pursuant to the personnel clause of Exemption (c ) of the Public Records Law. After receipt of my March 31st determination, the Town withdrew any further claims that Exemptions (d) and (f) applied to withhold the recording in its entirety. Therefore, I decline to further opine regarding those exemptions. In an April 13th email, in compliance with my March 31st determination, the Town provided Ms. Kelly with a redacted copy of the recording, withholding a portion of the recording 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 7/507 Page2 April 26, 2017 as information that the Town found useful in making an employment decision regarding an identified Town employee pursuant to Exemption (c). 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). Exemption (c) The Town withheld a portion of the record under the first clause of Exemption (c) of the Public Records Law as personnel information. 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 or 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. ih In your March 1 response and during a discussion with a Public Records Division attorney, you explained that the recording was a record useful in evaluating and making an employment decision regarding an identified employee of the Town. The information contained in the recording enabled the Town to decide whether the identified employee would continue to be employed by the Town. In my March 31st determination, I found that the Town could properly withhold that portion of the recording that the Town found useful in making an employment decision regarding an employee under Exemption ( c ). On April 131 \ the Town provided Ms. Kelly with a redacted copy of the recording pursuant to the first clause of Exemption (c). This office learned that on April 21, 2017, the

James M. Kreidler SPRl 7/507 Page 3 April 26, 2017 Town chose not to continue the employment relationship between the Town and the identified employee. In camera review A Public Records Division attorney telephoned you on April 24th and followed-up with an email to you on April 25th requesting that the Town provide this office with a copy of both the un-redacted and redacted audio recording to allow the Supervisor of Records to review the recording in camera to verify that the recording was redacted in compliance with my prior determination of March 31st concerning Exemption (c ). Whereas, the Town has not responded to the Public Records Division, I order that the Town provide the redacted and un-redacted recordings for in camera inspection to verify whether the recording was properly redacted under Exemption (c) of the Public Records Law. My authority to require the submission of documents for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4) (Supervisor may require an inspection of the requested record(s) in camera during any investigation or any proceeding initiated pursuant to 950 C.M.R. 32.08). See also G. L.c, 66, § 1 (Supervisor statutorily empowered to adopt regulations to implement the provisions of the Public Records Law). This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Commission Against Discrimination, 384 Mass. 198, 206 (1981) ( administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. After I complete my review of the records, I will return the records to your custody and issue a determination on the Exemption ( c) claim. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.02 (defining "custodian" as any governmental entity that makes or receives public records). This office has a long history of cooperation with governmental entities with respect to in camera inspection. Custodians submit a copy of the relevant records or documents to this office upon a promise of confidentiality. This office does not release documents reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, documents or records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the Town is hereby ordered to provide this office with both the un-redacted

James M. Kreidler SPR17/507 Page4 April 26, 201 7 and the redacted copy of the audio recording requested by Ms. Kelly within ten business days for an in camera inspection by the Supervisor or Records, and in a manner consistent with the Public Records Law and Access Regulations. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kelly M. Kelly