John D. Rousseau v. Department of Correction - Legal Division (SPR 20180912)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth . Public Records Division Rebecca S. Murray Supervisor of Records July 5, 2018 SPRlS/912 Judith Allonby, Esq. Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110-1327 Dear Attorney Allonby: I have received the petition of John Rousseau appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rousseau requested a copy of: 1. The disciplinary file for an identified former employee; and 2. The status of investigation number 16464. The Department provided a June 8, 2018 response indicating that the Department does not keep separate disciplinary files for its employees; however, disciplinary records are maintained within each employee's personnel file. Therefore, the Department denied Mr. Rousseau's Request Number 1 pursuant to Exemption (c) of the Public Records Law. The Department provided Mr. Rousseau with a separate letter pertaining to Request Number 2 for the status of the investigation of Mr. Rousseau's allegations of staff misconduct that were unsubstantiated." The Department previously provided Mr. Rousseau with a March 16, 2018 letter from Deputy Chief David Shaw of the Office of Investigative Services informing Mr. Rousseau of the results and the closed status of investigation number 16464. The Department also provided Mr. Rousseau with a copy of the closed investigation Intake Number 16464. As a result of the Department's denial of the disciplinary information from an identified former employee's personnel file from 1993 and 2006 pursuant to Exemption (c), Mr. Rousseau petitionedillie Supervisor of Records (Supervisor), and this appeal was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Judith Allonby, Esq. SPR18/912 Page 2 July 5, 2018 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) (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 exemption or exemptions upon which the withholding is based ... "); 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). The Department's June 8, 2018 response The Department's June 8th response indicates that there are two (2) responsive records in the identified former employee's personnel file from 1993 and 2006. Your response informed Mr. Rousseau that the request is denied under both clauses of Exemption ( 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 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). First clause of (c) -personnel The first clause 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). The courts have also discussed specific categories of

Judith Allonby, Esq. SPR18/912 Page 3 July 5, 2018 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). · Your June 8th response pertaining to the two documents being withheld under the personnel clause states, "[t]he Department denies your request for these materials because they are not only of [the identified person's] personnel file, but the release of these materials would also constitute an unwarranted invasion of personal privacy, especially where [the identified person] no longer works for the Department but is retired." In a June 21st telephone discussion with a Public Records Division attorney, you explained that the responsive documents are letters that were placed in the identified person's personnel file, and that this person is retired from state government employment. Further, you explained that the personnel issues do not pertain to involvement with inmates or any misconduct pertaining to inmates. You assert that the issues addressed with the employee by a superior with the authority to hire and fire pertain to schedule and attendance, and possible family issues. You posit that these letters from superior to employee are disciplinary documents that fall under the Wakefield decision as a personnel record that may be withheld under Exemption (c). Furthermore, the Department found this information useful in making employment decisions regarding this particular employee. See Wakefield, 431 Mass. at 798. Courts have concluded that "personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature." Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). Within the context of the first clause of Exemption ( c ), the Supreme Judicial Court has determined that records are "personal" if they pertain to a particular individual. Wakefield, 431 Mass. at 799. In addition, you explained that the letters are considered personnel file information that is "personal" under Exemption ( c) because the letters pertain to this particular identified individual. The disciplinary infqrmation withheld by the Department is considered one of the core categories of personnel information that Massachusetts courts have found may be withheld from disclosure under Exemption (c). See Worcester, 58 Mass. App. Ct. at 5. As a result of the Department's response and discussion with office, I find that the Department has properly withheld the disciplinary information under the personnel clause of Exemption (c). Conclusion Accordingly, I find that the Department has properly withheld the records pursuant to Exemption (c) of the Public Records Law. If Mr. Rousseau is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Judith Allonby, Esq. SPR18/912 Page 4 July 5, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: John Rousseau