Bryan Dumont v. Shirley, Town of - Town Administrator (SPR 20171189)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 6, 2017 SPR17/1189 Timothy D. Zessin, Esq. KP Law, P.C. 10 1 Arch Street, lih Floor Boston, MA 02110 Dear Attorney Zessin: I have received the petition ofBryan Dumont appealing your August 8, 2017 response on behalf of your client, the Town of Shirley (Town), to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dumont requested records pertaining to an investigation report and any email communications involving Risk Management Advisors (RMA) and several identified individuals. Initially, the Town provided a response to Mr. Dumont dated August 8, 2017 and attached were redacted copies of the responsive reports issued to the Town by RMA on October 18th and December 12,2016. Also included was a copy ofthe Letter of Engagement between the Town and RMA. Basis for the appeal In his petition to this office dated August 24th, Mr. Dumont appealed the Town's response, and questioned the redaction of "Paragraph 1 of Page 2" from the fifteen-page report under the privacy clause of Exemption (c). It is Mr. Dumont's belief that Paragraph 1 of the report involves the investigator's opinion which is a critical element of the investigation and should be a public record. In addition, Mr. Dumont appealed the Town's response regarding the emails, stating, "I specifically requested an email communication between Investigator ... and the 'TOWN' (Town Administrator) ... [T]he Town's Attorney does not make it clear as to the rationale in not providing the second portion of this request." The Town redacted certain portions of the October 18th report pursuant to the second clause of Exemption (c) ofthe Public Records Law. In the response you informed Mr. Dumont that the Town is not in possession of any documents responsive to his request for email communications. Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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. See G. L. c. 66, § lO(a)(ii). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832o Fax: (617) 727-5914 o sec.state.ma.us/pre pre@sec.state.ma.us o

Timothy D. Zessin, Esq. SPR17/1189 Page 2 September 6, 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 orreceived 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, § 1 O(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. Exemption (c) In your response you informed Mr. Dumont that a portion of the October 18th report was redacted pursuant to the privacy clause of Exemption (c) of the Public Records Law. 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. 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). Only the second clause of Exemption (c) is applicable to this determination. 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 ofReal Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family

Timothy D. Zessin, Esq. SPR1711189 Page 3 September 6, 2017 disputes and reputation. I d. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PET A, 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The Town explained that the report contains unresolved allegations regarding a particular person and release of the redacted portion ofthe report may implicate the privacy rights ofthe individual. It is the Town's belief that this person's privacy interest outweighs the public's interest in disclosure due in part because this person was not the subject of the internal affairs investigation for which RMA' s services were retained. You posit that release of these records prior to disposition would likely result in adverse speculation into the individual's professional competence and may damage the individual's reputation in the community. Therefore, the Town has withheld that small portion of the report to protect this person's reputation and professional competence under the privacy clause of Exemption (c). It is my understanding that a Public Records Division staff member provided the Town with a copy of the appeal file, including Mr. Dumont's petition, and requested the Town provide him with a response to the appeal. Subsequently, you informed an attorney in the Public Records Division that a supplemental response, dated August 29th, was provided to him and copied to this office addressing the issues raised in this appeal. Conclusion Accordingly, whereas the Town has provided Mr. Dumont with a supplemental response to his request and this appeal, I will consider this appeal closed. Mr. Dumont may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Ms. Patrice Garvin Mr. Brian Dumont