Christopher M. Sabbag v. Hanson, Town of - Town Administrator (SPR 20171454)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 23, 2017 SPR17/1454 Joshua R. Coleman, Esq. Collins, Loughran & Peoloquin, P.C. 220 Norwood Park South, Suite lD Norwood, MA 02062 Dear Attorney Coleman: I have received the petition of Christopher M. Sabbag appealing the response ofthe Town of Hanson (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sabbag requested a copy of: 1. Any and all investigation reports authorized by the Town, Town Administrator and Board of Selectmen regarding the activities of the administrative assistant at Camp Kiwanee leading up to the resignation of an identified person; 2. Any separation agreement between the Town and an identified person; 3. The resignation letter from an identified person; 4. All documents evidencing the total dollar amount for the Camp Kiwanee investigation; 5. All documents evidencing the total dollar amount for the investigation of an identified person; 6. Posted Board of Selectmen agendas for February 2, 2017 and February 7, 2017; and 7. Any audit reports regarding Camp Kiwanee/Recreation for the calendar years 2010- 2016. The Town provided Mr. Sabbag with records or information responsive to requests 2, 3, 4, 5, 6 and 7. However, the Town withheld some content in the separation agreement (request 2), and withheld the investigation report (request 1) in its entirety pursuant to Exemption (c). Mr. Sabbag petitioned this office concerning the Town's Exemption (c) claim to withhold both content from the employment separation agreement and withholding, in its entirety, the investigation report. Also in his petition, Mr. Sabbag states that while the Town provided him with the total dollar amounts for the costs borne by the Town for the Camp Kiwanee investigation and the investigation of an identified Town employee, he requested the documents that evidence those costs, such as invoices. After this appeal was opened, the Town provided Mr. 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

Joshua R. Coleman SPR17!1454 Page2 October 23, 2017 Sabbag with an October 20th response that stated that the Town will provide Mr. Sabbag with those invoices, redacting any information that it is allowed by law, including any attorney-client privileged information. In an October 20th discussion with an attorney in the Public Records Division, you indicated that you would be the individual who will segregate and redact the invoices, and that you will charge Mr. Sabbag your hourly rate. You were advised that municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by. the Supervisor of Records under a petition under G. L. c. 66, § 10 (d )(iv). As you were also advised, a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10 (d )(iv). See G. L. c. 66, § 10(d)(iii); 950 CMR 32.06(4). Status ofthe requester -Appeal to the Supervisor In his petition, Mr. Sabbag states that whereas he made a complaint to the Town concerning an identified person that was not addressed, he should be entitled to all the requested records. The Public Records Law does not distinguish between individuals seeking public records. Mr. Sabbag should be advised that his involvement in an underlying matter offers him no greater right of access than any other person. See G. L. c. 66, § 10(a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Therefore, his status shall not play a part in whether the records should be released to the public. 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, § 10(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.

Joshua R. Coleman SPR17/1454 Page 3 October 23, 2017 Exemption (c) - investigation report The Town's July lOth and October 20th responses state that the Town withheld the investigation report pertaining to an identified person in its entirety under the first clause of Exemption (c). 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, relevant to this appeal, creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. ChiefofPolice of Worcester, 58 Mass. App. Ct. 1, 5 (2003). 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). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). The Town withheld the investigation report in its entirety as personnel information pursuant to Exemption (c) due to the Town's reliance on the report to render an employment decision concerning a former employee. In your July lOth letter you state, "[a]s recently as 2015, the Supervisor of Records ruled that such documents that specifically relate to whether there should be disciplinary action taken against an employee fall under the statutory exemption." After reviewing your July and October responses, it is unclear how the responsive investigation report can be withheld in its entirety.under the personnel clause of Exemption (c), and why the Town cannot redact certain of the information from the report and produce the non exempt portions. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). I find that the Town has not met its burden in claiming Exemption (c) to allow for the withholding of the investigation report in its entirety.

Joshua R. Coleman SPR17/1454 Page4 October 23, 2017 Separation agreement The Town provided Mr. Sabbag with a redacted copy of the employment separation agreement (separation agreement) between the Town and the identified person. Mr. Sabbag appealed, indicating that he believes the separation agreement is overly redacted. He states, "[c]onsiderably more than dollar amounts were redacted." A review by this office reveals that the Town redacted whole sections of the two-page separation agreement. The Town did not provide Mr. Sabbag with a specifically-stated response to explain the applicability of the exemptions to the portions of the separation agreement that were redacted. Instead, the Town's July 10th response stated, "[t]he document is attached, with redactions that are exempt from public disclosure in accordance with the 2013 Superior Court decision in Globe Newspaper Co. v. Executive Office of Administration and Finance." After this appeal was opened, the Town provided an October 20th response which claims that the Globe Newspaper case allows the Town to redact settlement terms including: administrative leave, compensation, adjustment or discontinuation of benefits (including unemployment assistance), a statement of resolution of all claims concerning termination of employment and prior disciplinary action, and any language affirming an agency's legitimate concern for discipline. The Town is advised, 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. 151, 158 (1979). 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). I find that the Town has not met its burden of properly claiming exemptions and specifically explaining the applicability of those exemptions to the redactions made to the separation agreement. The Town must review the settlement agreement and provide Mr. Sabbag with a revised copy of the settlement agreement in accordance with this determination, as well as a supplemental response to support its redactions and exemption claims. Burden ofs pecificity-Duty to segregate The Town has not met its burden of claiming the exemptions with specificity. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. A custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or redacted portion ofthe responsive record. See G. L. c. 66, § 10(a). The Town has a duty to segregate those

Joshua R. Coleman SPR17/1454 Page 5 October 23, 2017 portions of a record that are specifically exempt from disclosure, and provide the balance of the record. G. L. c. 66, § 10 ( a). Conclusion Whereas the Town will provide Mr. Sabbag with a supplemental response to the request concerning the investigation report, separation agreement and records of the costs of the investigations, I will consider this appeal closed with the proviso that the response is 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 Supervisor of Records cc: Christopher M. Sabbag Michael McCue