Richard D. Bradley v. Falmouth, Town of - Town Clerk (SPR 20171620)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 28, 2017 SPR17/1620 Michael Palmer Town Clerk Town of Falmouth 59 Town Hall Square Falmouth, MA 02540 Dear Mr. Palmer: I have received the petition of Richard Bradley appealing the response of the Town of Falmouth Town Clerk (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 18, 2017, Mr. Bradley requested a copy of "the Job Description and the last evaluation the Selectmen did on the Town Manager." Mr. Bradley also requested documentation related to a field renovation. The Town provided a response dated September 28, 2017, in which it provided portions of the responsive record and denied access to others pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Town's response, Mr. Bradley petitioned this office and this appeal, SPRl 7/1620, was opened as a result. It appears Mr. Bradley is only appealing the Town's denial of access to the Town Manger's evaluation record. 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, § lO(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. 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

Michael Palmer SPR17/1620 Page2 November 28, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town's September 28th response In its September 281 h response, the Town indicated that it was partly responding to Mr. Bradley's public records request. The Town stated "I enclose herewith the Town Manager's job description. The Town Manager ... was evaluated by the Board of Selectmen and the board discussed his evaluation on two occasions in early 2017. I enclose herewith copies of the minutes of the board's meetings held on February 13, 2017 and March 27, 3017. The Town Manager's evaluation and goals were discussed at these public meetings. A copy of 2017-2018 Town Manager Goals referred to in the minutes is also attached hereto." However, the Town indicated that "the Town Manger's written evaluation is not a public record. It is exempt pursuant to Exemption (c) of the Public Records Law (the privacy exemption) as ' ... personnel and medical files or information; materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy."' Exemption (c) The Town claimed it withheld the Town Manager's written evaluation pursuant to 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, disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). First clause 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 and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987). Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee'" may be withheld from

Michael Palmer SPR17/1620 Page 3 November 28, 2017 disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police 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 ofrecords 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). 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. 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 ifrelating to an individual's official responsibilities. See Brogan, 401 Mass. at 309. Second clause 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. 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 disputes and reputation. Id. 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. PETA, 477 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.

Michael Palmer SPR17/1620 Page4 November 28, 2017 Based on its September 23th response, it is unclear whether the Town is claiming an exemption under the first clause of Exemption ( c) , the "personnel and medical files or information," or the second clause, which pertains to" ... other materials or data relating to specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy," to withhold the Town Manager's written evaluation. Consequently, I find that the Town has not met its burden of specificity in explaining how either clause of Exemption ( c) applies in denying access to the requested record. The Town must clarify whether the first and/or the second clause of Exemption ( c) applies to withhold the record. I understand a Public Records Division staff attorney contacted your office about this appeal and you indicated you will provide a supplemental response. Conclusion Accordingly, whereas the Town has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Town provides said response 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. Mr. Bradley may appeal the substantive nature of the response within ninety days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard Bradley