Michael Smith v. Wareham, Town of - Town Administrator (SPR 20180096)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. MUrray Supervisor ofR ecords February 5, 2018 SPR18/096 Derek D. Sullivan Town of Wareham-Town Administrator Memorial Town Hall 54 Marion Road Wareham, MA 02571 Dear Mr. Sullivan: I have received the petition of Michael Smith appealing the response of the Town of Wareham Town Administrator (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on August 15, 2017, Mr. Smith requested a "copy of the internal affairs investigation relating to" an identified Wareham Police Sergeant and Police Chief "conducted during the fall of 2016 by an independent investigator." Previous appeals The requested record was the subject of previous appeals. See SPR17 /1163 Determination of the Supervisor of Records (September 6, 2017); SPR1711524 Detennination of the Supervisor of Records (November 7, 2017); SPR1688 Determination of the Supervisor of Records (December 18, 20 17). I closed SPR17 /1688 with the proviso that the Town provide a response to Mr. Smith in a manner consistent with the order, the Public Records Law, and its Regulations. Following the December 18th Determination, the Town provided a supplemental response to Mr. Smith on December 27, 2017, which included responsive records in redacted form. The Town claims Exemption (c) of the Public Records Law applies to withhold the redacted portions of the record. Unsatisfied with the Town's response, Mr. Smith petitioned this office and this appeal, SPR18/096, 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, § lOA( d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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

Derek D. Sullivan SPR18/096 Page 2 February 5, 2018 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § I O(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 December 2111 response In its December 27, 2017 response, the Town indicated that it relied on Exemption (c) and the Wakefield decision to withhold the redacted portions of the responsive record. The Town indicated that it redacted two sentences from Section II of the Investigative Report (Report) because "they detail the recommended personnel action to be imposed with documentation placed in [the identified Chiefs] personnel file [and] contain information of a highly personal nature." Under Section III and the Conclusion section of the Report, the Town indicated that it redacted certain portions of paragraphs 9 and 20 because they reference a personnel matter involving the identified Chief. The Town also indicated that paragraphs I 0 and 16 reference unsubstantiated allegations regarding a specific individual the disclosure of which may "have a decidedly negative effect on the [identified Chiefs] ability to function as the head of Wareham Police Department [and] constitute an unwarranted invasion of personal privacy." The Town further indicated that it redacted portions under the Recommendations section of the Report because, "[t]he investigator details the rationale for the personnel actions [he/she] recommends" and that the Report has been placed in the identified Chiefs personnel file. The Town concludes that disclosure ofthis sensitive and careful investigation and analysis "would inhibit the Town's ability to function effectively as employer since employees would be reluctant to cooperate in the investigation, and the release of allegations that were not substantiated will only have a decidedly negative effect on the [identified Chiefs] ability to function as the head of Wareham Police Department." Exemption (c) The Town indicated that it redacted portions of the Report pursuant to Exemption (c) of the Public Records Law. Exemption (c) permits the withholding of:

Derek D. Sullivan SPR18/096 Page 3 February 5, 2018 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). First clause ofE xemption (c)-personnel 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. 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). 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.l5. 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). Second clause ofE xemption (c) Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to !mow against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. l, 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: (l) 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

Derek D. Sullivan SPR18/096 Page 4 February 5, 2018 People for the Ethical Treatment of Animals CPETA) 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. I d. at 292 n.l3; 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. In the Town's response, it indicated that information redacted from the Report references personnel information of the identified Chief and has been placed in his/her personnel file. The Town is reminded that Courts have held that the term "personnel information" is neither rigid nor exact, and that determination should be made on a case by case basis. Wakefield Teachers Ass'n, 431 Mass. at 798. The term "personnel file or information" in Exemption (c) derives its meaning from the nature or character of the document, not from its label or its repository. Worcester Telegram & Gazette Com. 58 Mass. App. Ct. at 5. Therefore, a custodian's designation of materials as personnel file or information will not be dispositive to that point. Id. at 5-6. In Wakefield, the Court found that at a minimum, personnel information includes, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee." Walcefield, 431 Mass. at 798. These, the Court concluded "constitute the core categories of personnel information that are useful in making employment decisions regarding an employee and may be properly withheld from disclosure under Exemption (c)." Id. at 798-99. Mr. Smith notes in his appeal that the redacted portions the Town claims to fall under the personnel exemption are in fact statements made by the identified Chief in the presence of sworn officers. The Town also indicated in its response that these statements were unsubstantiated allegations. Consequently, it is unclear how these statements or unsubstantiated allegations constitute one of the core categories of personnel information the Wakefield Court determined to be exempt as personnel. Further, although the Town claimed the redacted portions contain "information of a highly personal nature," the disclosure of which may constitute an unwarranted invasion of personnel privacy, it is unclear how disclosure of the withheld portions would result in personal embarrassment to an individual of normal sensibilities. Also, the Town has not demonstrated how the withheld portions are intimate details of a highly personal nature, nor addressed whether this information is available from other sources. PETA, 477 Mass. at 292. In addition, the Town

Derek D. Sullivan SPR18/096 Page 5 February 5, 2018 must provide additional information regarding the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. See id. at 291-92. In light of the PETA analysis, I find the Town has not met its burden to establish that Exemption (c) applies to the redacted portions of the records. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the Town is hereby ordered to provide Mr. Smith 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. In camera inspection In the alternative, in order to facilitate a determination as to the applicability of exemption claims made by the Town, the Town may provide this office an unredacted copy of the responsive records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n 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. 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. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, 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.

Derek D. Sullivan SPRlS/096 Page 6 February 5, 2018 The Town may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Smith