Susan Spencer v. Uxbridge, Town of - Town Clerk (SPR 20180798)

The Commonwealth of Massachusetts William Francis Calvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofRecords June 15,2018 SPRl81798 Kelly J. Dumas Town Clerk Town of Uxbridge 21 South Main Street Uxbridge, MA 0 15 69 Dear Ms. Dumas: I have received the petition of Susan Spencer, a reporter with the Telegram & Gazette appealing the response of the Town of Uxbridge (Town) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Spencer requested a copy of: 1. The Town Manager's 90-day evaluation, and her reply to the Board of Selectmen (Board) that was discussed at the Selectmen's meeting of May 22,201 8; and 2. Any follow-up correspondence or documents related to the performance evaluation. On May 30", the Town provided Ms. Spencer with a copy of the Board's meeting minutes and the summary page of the Town Manager's performance evaluation. In addition, the Town Manager provided Ms. Spencer with a copy of her draft written response which was discussed at the May 22ndB oard meeting. In her June 1,201 8 petition to the Supervisor of Records for an appeal, Ms. Spencer indicated that she was denied a copy of the individual findings of the Board members pertaining to the Town Manager's evaluation. Your May 30"' response states, "[ulnder the advice of Town Counsel, [tlhe requested information is protected from dissemination by exemption (c) of the public records law, known as the privacy exemption." As a result of this denial, this appeal was opened. 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, 5 10A(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 021 08 (61 7) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Kelly J. Dumas, CMC Page 2 June 15,2018 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, 5 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, 5 10(b)(iv) (written response must "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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). The Town's May 30,2018 response While Ms. Spencer was provided with the responsive meeting minutes, summary of the performance evaluation of the Town Manager and the Town Manager's written reply to the Board, the Town's May 3ot" response indicates it is withholding, in their entirety, the individual Board member's performance evaluations of the Town Manager pursuant to Exemption (c). G. L. 4, 5 7(26)(c). 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 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 (1 983). The first clause, relevant to this appeal, creates a categorical exemption for personnel information Id. that relates to an identifiable individual and is of a "personal nature." at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in malting 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 43 1 Mass. 792, 798 (2000). b, 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 Publ'~C o. v. Register of Probate for Norfolk Cnt~.3, 95 Mass.

Kelly J. Dumas, CMC Page 3 June 15,2018 274,278 (1 985); Globe Newspaper Co., 3 88 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. 15 1, 158 (1 979). 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 of (c) - privacy 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 Cornm'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 (20 17). 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 a. disputes and reputation. 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 a. in a law-abiding and efficient manner. at 292. Burden of specificity in responding and claiming exemptions It is unclear from the Town's May 3othr esponse whether it is claiming that the Board's individual performance evaluations of the Town Manager have been withheld as one or more of the core categories of personnel information regarding the Town Manager under the first clause of Exemption (c), or whether the Town is claiming both the personnel clause and the second clause of Exemption (c), as information containing intimate details of a highly personal nature. Therefore, I find that the Town did not meet its burden of specificity in responding and claiming Exemption (c) to withhold the Board members' individual performance evaluations.

Kelly J. Dumas, CMC Page 4 June 15,2018 Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, 3 lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The Town did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). The Town must produce any non-exempt, segregable portions of the public records. G. L. c. 66, 5 lO(a). Open Meeting Law It should also be noted that issues related to the release of individual evaluations may invoke the Open Meeting Law. An interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO). &G. L. c. 30A, 3 23. Therefore, it may be appropriate to contact the AGO about this issue. Conclusion Given that the Town did not meet its burden of specificity in responding and withholding records under the Public Records Law, the Town is ordered to review the record(s), redact where necessary, and provide the records to Ms. Spencer in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. The Town may request reconsideration of this determination within ten (10) business days of the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Susan Spencer