Bryan Dumont v. Shirley, Town of (SPR 20180968)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 12,2018 SPR181968 William Oelfke Town Clerk Town of Shirley 7 Keady Way Shirley, MA 0 1464-28 12 Dear Mr. Oelfke: I have received the petition of Bryan Dumont appealing the response of the Town of Shirley (Town) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dumont requested a copy of executive session minutes of a meeting that occurred on or about February 22,2018 regarding the terminationlplacement on administrative leave of an identified individual who was paid until April 1,2018 . In a May 29,201 8 response, the Town denied the request in its entirety under the Open Meeting Law. As a result, Mr. Durnont appealed, and this appeal was opened. Open Meeting Law In its May 29"' response, the Town stated, "[s]pecifically, the Town has identified minutes from an executive session convened by the Board of Selectmen on February 27,20 18, the purpose of which was 'to discuss complaints against a public officer, employee, staff member or individual' in accordance with the provisions of G. L. c. 30A, 5 21(a)(l)." The Town further indicated at that time that the executive session minutes had not been approved and voted on for release by the Board of Selectmen (Board), therefore, the Town was withholding the executive session meeting minutes under the Open Meeting Law (OML) exception used to go into executive session. Please be advised that the interpretation of the OML falls within the authority of the Office of the Attorney General and not this office. Therefore, I decline to provide a determination as to the status of the executive session minutes under the OML at the time of the request and the Town's initial May 29th response. See G. L. c. 30A, 5 23. It is recommended that you contact the Division of Open Government within the Office of the Attorney General, should you have any questions, concerns or seek a determination on the OML. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 * (617) 727-2832. Fax: (617) 727-5914 sec.s tate.ma.us/pre pre@sec. state.ma.us

William Oelfke Page 2 July 12,201 8 In a July 11, 20 18 telephone conversation with a Public Records Division staff attorney, you confirmed that since the Town provided the May 29thr esponse, the Board voted to approve the February 27'" meeting minutes and that the OML exception to withhold the minutes under the OML has been extinguished. 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 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, 5 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 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. Flatlep, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). The Town's May 29,2018 response and July 11,2018 telephone discussion with this office In its May 29''' response and during the July 11'" telephone discussion with this office, you explained that while the Town is no longer withholding the February 27'" executive session meeting minutes under the OML, the Town is now withholding the minutes in their entirety under the first clause of Exemption (c) as personnel information that was useful in making an employment decision concerning an identified Town employee. Exemption (c) -personnel 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 (1983). First clause of (c) -personnel The first clause creates a categorical exemption for personnel information that relates to

William Oelfke Page 3 July 12, 201 8 Id. 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 making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Cow. 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). Waltefield Teachers Ass'n v. School Comm., 43 1 Mass. 792,798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11 -011 84-A (June 14,2013). 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. Waltefield, 43 1 Mass. at 799. 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 Georpe W. Prescott Publ'a Co. v. Register of Probate for Norfolk Cnty., 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 (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). The Town specified in its May 29t" response that the executive session was convened to evaluate and discuss complaints pertaining to an identified Town employee. The Town's response concludes, "the minutes from the executive session convened on February 27,201 8 'to discuss complaints against a public officer, employee, staff member or individual' clearly constitute "personnel information" under Exemption (c) and will therefore be withheld in their entirety." During the July 11' discussion with the Public Records Division staff attorney, you explained that the Board's deliberation centered on the complaints and whether the identified employee's employment relationship with the Town would continue. This office also inquired whether the minutes could be redacted under Exemption (c), and you indicated that the Town's Legal Counsel advised the Town that no portion of the minutes could be redacted. Based on the Town's May 29th response and this office's July 1l thd iscussion with you, I find that the Town did not specify whether the responsive minutes fall under one of the core categories of records that are useful in making an employment decision about the identified employee. See Worcester, 58 Mass. Ap. Ct. at 5. Nor has the Town met its burden of proving that the minutes cannot be redacted under Exemption (c) and the balance of the minutes provided to Mr. Dumont.

William Oelfke Page 4 July 12,2018 Burden of specificity in responding; claiming exemptions The Town denied Mr. Dumont's request without providing the requisite specificity to withhold, in their entirety, the executive session minutes under the personnel clause of Exemption (c). Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, 5 10(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 5 11. The Town did not meet its burden of demonstrating how the responsive minutes, 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 10(a). Order Given that the Town has not met its burden of specificity in withholding, in their entirety, the responsive meeting minutes, the Town is ordered to review the minutes, redact where necessary and provide the minutes to Mr. Dumont 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 that accompanies the records 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Bryan Dumont