George Brennan v. Tisbury Town Administrator (SPR 20170927)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 21,2017 SPRl71927 John W. Grande Town Administrator Town of Tisbury 5 1 Spring Street Tisbury, MA 02568 Dear Mr. Grande: I have received the petition of George Brennan of the Martha's Vineyard Times appealing the response of Town of Tisbury Town Administrator (Town) to a request for public records. G. L. c. 66 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Brennan requested investigative reports, "any and all discipline reports," and "any and all executive session minutes from previous disciplinary hearings" regarding an identified police officer. Previous appeal This request was the subject of a previous appeal. See SPR171782 Determination of the Supervisor of Records (June 21,2017). I closed SPR171782 by ordering the Town to provide Mr. Brennan with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. In a letter dated July 6,2017 the Town provided a response in which it continues to withhold portions of the responsive records under Exemptions (a) and (c) of the Public Records Law G.L. c. 4 § 7 (26)(a), (c). Mr. Brennan appealed and SPR171927 was opened as a result. 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, 5 10A(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, 5 7(26). One Ashburton Place, Room 1719 , Boston, Massachusetts 02108 (61 7) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

John W. Grande Page 2 July 21,2017 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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, $ lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Executive session minutes; Open Meeting Law In its July 6"' response the Town indicates "[wlhere the topic of the executive sessions relate to personnel matters and the documents related thereto are specifically exempt from disclosure under the public records law, the Town is justified in determining that their release at any time would defeat the purpose of the executive session." The Town cites G.L. c. 30A, $ 22(f) as it operates through Exemption (a) to support this position. Mr. Brennan's request for executive session minutes, along with the Town's response to this request, raise issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the status of the executive session minutes. See G.L. c. 30A, $23. It is recommended that the parties contact the AGO should they seek a determination on this issue. Exemption (c) The Town also cites the first and second clause of Exemption (c) to support withholding certain information. 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 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 medical and personnel information that relates to Id. an identifiable individual and is of a "personal nature." at 434. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel

John W. Grande Page 3 July 21,2017 information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 43 1 Mass. 792, 798 (2000). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 158 (1 979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). Please note that the courts have contrasted the public status of disciplinary investigation materials of law enforcement personnel from the "ordinary evaluations, performance assessments, and disciplinary determinations" included in the public records exemption for "personnel [file] or information" for other public employees due to the significance of maintaining the transparency of the police department's internal affairs process. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. 1,2 (2003). Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1,9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. See also People for the Ethical Treatment of Animals (PETA) v. Dep't of Aqric. Res., 477 Mass. 280,292 (2017). The Town indicates the "executive session minutes pertaining to previous disciplinary hearings, as well as the disciplinary reports have been withheld as they contain disciplinary documentation which was useful in malting employment decisions and thus fall within [Elxemption (c) to the public records law." The Town further asserts "[tlo release the executive session minutes and disciplinary reports containing personnel information would disrupt the government's capability to conduct sensitive and careful investigations regarding employees, and constitute an unwarranted invasion of personal privacy." In light of the uncertainty regarding existing responsive records discussed below, it is unclear how Exemption (c) applies to withhold responsive records. Unclear if all responsive records provided In his appeal petition, Mr. Brennan indicates his belief that additional responsive records have not been provided, including records related to a 201 4 incident, records related to testifying in court, as well as supplementary documents referenced in a 2017 report. I find that based on the Town's responses, it is unclear whether it possesses additional responsive records.

John W. Grande Page 4 July 21,2017 The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, 5 10(a)(ii). Therefore, the Town must clarify which responsive records it possesses. If it intends to withhold any records, it must explain with specificity how an exemption applies. See Flatlev, 419 Mass. at 5 11 (custodian has the burden of establishing the applicability of an exemption). I understand a Public Records Division staff attorney contacted the Town attorney about this appeal and provided a copy of the file associated with this appeal. I understand the Town will provide a supplemental response to Mr. Brennan addressing these matters. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Town provide Mr. Brennan with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@- ,sec.state.ma.us. Sincerely, Rebecca S. Murray v Supervisor of Records cc: George Brennan Brian M. Maser, Esq.