Timothy A. Toomey v. Rowley, Town of - Town Administrator (SPR 20180099)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca 8, Murray Supervisor of Records

February 6, 2018 SPR18/099

Ms. Deborah M. Eagan

Town Manager

Town of Rowley

139 Main Street

Rowley, MA 01969

Dear Ms. Eagan:

I have received the petition of Timothy Toomey appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.LR. 32.08(1). On November 10, 2017, Mr. Toomey requested “[a]ny and all information regarding executive session minutes for the executive session conducted by the Board of Selectmen for the September 18, 2017 meeting.” Mr. Toomey also requested any documents regarding “investigations conducted by either boards, complaints, grievances or joint board investigation reports.” On December 11, 2017 the Town responded to the public records request and Mr. Toomey appealed the Town’s response.

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.MLR. 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.

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

Ms. Deborah M. Eagan SPR18/099 Page 2 February 6, 2018

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Exemption (c)

The Division claims the records may be withheld under the first 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). 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).

Appeal

Mr. Toomey appealed the Town’s response on January 16, 2018 believing that the Town did not provide a “valid response.” The Town states that there are no reports of “investigations by either board, complaints, grievances or joint board investigations relative to the executive sessions.” 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, § 10(a)(ii), (6) (ii).

The Town also references Exemption (c) for the redaction of minutes citing protections from disclosures of personal information, medical information, and an individual’s privacy interest. Despite the Town's reference to Exemption (c), it is unclear which of these apply to each redaction or withheld record. See G. L. c. 66, § 10(b)(iv) (a written response shall "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific

Ms. Deborah M. Eagan SPR18/099 Page 3 February 6, 2018

exemption or exemptions upon which the withholding is based .... "); Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption), In order to determine whether the withheld information properly falls under the exemptions cited, the Town must specify which exemption applies to each redaction or withheld record,

Conclusion

Accordingly, the Town is ordered to produce responsive records in a manner consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of 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. Toomey may appeal the substantive nature of the revised response within ninety days. See 950 C.M.R. 32.08(1).

Sincerely,

Rebecca S. Hideen Murnasy

Supervisor of Records

cc: Mr. Timothy Toomey