Kim Sherwood v. Town of Topsfield - Town Clerk (SPR 20181161)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 17, 2018 SPR18/1161 Mary E. Willis Town Clerk Town of Topsfield 8 W. Common Street Topsfield, MA 01983 Dear Ms. Willis: I have received the petition of Kim Sherwood appealing the response of the Town of Topsfield (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Sherwood requested a "copy of the job scoring complete by Selectman Bermudez, Al Wallace and Roberta Sapienza for the new position of Town Clerk/ RAO." Previous appeal This request was the subject of a previous appeal. See SPRl 8/1002 Determination of the Supervisor of Records (July 23, 2018). I closed SPR18/1002 by ordering the Town to provide Ms. Sherwood with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. On August 2, 2018, the Town provided a response to Ms. Sherwood. Unsatisfied with the Town's response, Ms. Sherwood petitioned this office and this appeal, SPR18/1161, 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 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, § 1 O(b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (c ustodian has the burden of 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

Mary E. Willis SPR18/1161 Page 2 August 17, 2018 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. Request/or "job scoring complete by Selectman Bermudez ... " In the Town's August 2nd response, it states that "[a]s the Town has previously indicated, ' [n Jo public records are in existence."' Under the Public Records Law, 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). Despite the Town's response, it remains unclear whether the Town possesses responsive records to this portion of Ms. Sherwood's request. In Ms. Sherwood's petition for appeal, she includes a link to a video recording of the Town's selectmen meeting dated June, 25, 2018, asserting that in the recording "Selectman Bermudez states that she completed the classification Gob scoring) herself." See TownOITopsfieldMA, Selectmen 6/25/2018, YouTUBE (June 25, 2018), https://www.youtube.com/watch?v=_ wFHtxW4MFo&t=4685s. Upon review of this video recording, it is this office's understanding that Selectman Bermudez indicates she has completed "the classification." The Town must clarify this matter. Request for "job scoring complete by ...A l Wallace and Roberta Sapienza" As mentioned above, in the Town's August 211d response, it states that "[a]s the Town has previously indicated, '[n]o public records are in existence."' The Town additionally indicates that "neither Roberta Sapienza nor Al Wallace are Town 'officer[s]' or employee[s]' and thus any records made by them do not qualify as 'public records' under the statutory definition contained in G.L. c. 4, 7(26)." The Town additionally asserts that "even if Mr. Wallace and Ms. Sapienza were considered Town 'officers or employees', their records would be subject to withholding pursuant to G.L. c. 4, §7(26)(e)." The Town explains "that any scoring sheets or other notes created by Mr. Wallace and Ms. Sapienza were individual notes to each of them, were not shared with me or any other Town official or employee, and are not maintained as part of the Town's files." Public records,· public employees or officials; agency relationship Despite the Town's response, it remains uncertain whether the "job scoring[s]" completed by Mr. Wallace and Ms. Sapienza constitute public records. In Ms. Sherwood's petition for appeal, she additionally provided this office with a link to a video recording of the Town's selectmen meeting dated May 21, 2018. See TownOITopsfieldMA, Selectmen 5/21/2018, YouTuBE (May 22, 2018),

Mary E. Willis SPR18/1161 Page 3 August 17, 2018 https://www.youtube.com/watch?v=XydVjpuzgEs&t=370s. Upon review of this video, it is this office's understanding that Mr. Wallace and Ms. Sapienza completed the "job scoring" for the purpose of assisting a Town employee, Kellie Hebert, in determining the proper "grade" of the Town ClerldRAO position. Id. As such. it is unclear why Mr. Wallace and Ms. Sapienza would not be considered public employees or officers in this instance and their "job scoring[s]" public records. See G. L. c. 268A, § l(g) (defining a "municipal employee" as "[a] person performing services for or holding an office, position, employment or membership in a municipal agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part time, intermittent, or consultant basis ... "); Fifty-one Hispanic Residents of Chelsea v. School Comm. of Chelsea, 421 Mass. 598, 607-08 (1996) (discussing agency relationship between a public and private entity within the context of the Public Records Law); G. L. c. 4, § 7(26) (defining public records as all documentary materials or data, regardless of physical form or characteristics, made or received by any public officer or employee). Please be advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea, 421 Mass. at 607-08. Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289- 90 (1979). The Town must clarify this matter. Exemption (e) Exemption ( e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e).

Mary E. Willis SPR18/1161 Page4 August 17, 2018 The second criterion of Exemption ( e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption ( e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. In order for the Town to claim Exemption (e), it must meet the criteria described above. The Town has not established that the requested records are notes that are personal to any one employee and not required to be part of the government's files. Although the Town asserts the "job scoring[s]" were not shared with any Town official or employee, in the previous discussed video recording of the Town selectmen meeting dated May 21, 2018, Ms. Hebert appears to indicate information from the "job scoring[s]" was discussed and shared with her. Further, it appears Ms. Hebert indicates that the "job scoring[s]" were completed for the purpose of assisting her with her duties as a Town employee. Id. As stated above, materials intended for communication cannot be withheld under Exemption ( e) as they are not personal in nature. Whereas it appears these materials were intended to be shared with a Town employee and information from these materials seemingly was in fact shared with a Town employee, the Town has not met its burden to establish that the records are personal notes and the records cannot be withheld under Exemption ( e ). Order Accordingly, the Town is ordered to provide Ms. Sherwood 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kim Sherwood