Brooks A. Ames v. Brookline, Town of (SPR 20181171)

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

Rebecca S. Murray Supervisor of Records

August 16, 2018

SPR18/1171

Joslin Ham Murphy, Esq.

Town Counsel

Town of Brookline

333 Washington Street, 6" Floor Brookline, MA 02445-6853

Dear Attorney Murphy:

[ have received the petition of Brooks A. Ames, Esq. of the Brookline Justice League appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Ames requested a copy of any settlement agreement that the Town entered into relating to a matter that was discussed in executive session by the Town’s Advisory Finance Commission.

The Town provided Attorney Ames with a settlement agreement responsive to his request; however, the Town redacted the settlement agreement under Exemption (c) of the Public — Records Law. As a result, Attorney Ames petitioned the 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 governmental records are public records. G. L. c. 66, § 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, § 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 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).

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

Joslin Ham Murphy, Esq. SPR18/1171 Page 2 August 16, 2018

The Town’s August 8, 2018 supplemental response

In an August 8" supplemental response, Town Counsel Joslin Ham Murphy asserts that the settlement agreement is a personnel record as defined by G. L. c. 149, § 52C, and the names of the individual(s) listed in the agreement were withheld as disclosure of the names would constitute an invasion of privacy. Therefore, the Town is withholding the names under both clauses of Exemption (c).

Confidentiality clause

A review of the redacted settlement agreement provided to Attorney Ames reveals that the Town redacted the names of the subjects of the agreement, and that the agreement contains a confidentiality clause. Your August 8" response indicates that the identities of the police officers who agreed to settle a disputed matter confidentially as well as the parties to the agreement must remain confidential.

Please be advised that no government agency may make private an otherwise public document merely by entering into an agreement to keep its terms confidential. Washington Post Co. v. Department of Health and Human Services, 690 F.2d 252, 263 (D.C. Cir. 1982); see also Ackerly v. Ley, 420 F.2d 1336, 1340 n.3 (D.C. Cir. 1969) (pledge of confidentiality cannot in and of itself override the Federal Freedom of Information Act). If such were the case, any government employee could unilaterally frustrate the purpose of the Public Records Law with a rubber stamp. See Washington Post Co., 690 F.2d at 263 (government agency cannot circumvent the Federal Freedom of Information Act with a private agreement). Therefore, the confidentiality clause cannot be used to circumvent the mandatory disclosure provision of the Public Records Law.

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). 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. vy. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion,

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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 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).

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.

LODO

IST, 158-1979). 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).

Settlement agreement

The Town withheld the names of the individuals listed in the settlement agreement as “personnel” and “an invasion of privacy” under Exemption (c). The Town is advised that a 2013 Superior Court decision affirms the presumption that separation, severance, transition or settlement agreements are public records, subject to redaction. See Globe Newspaper Co. v. Exec. Office ofAdmin. and Finance, 34-35. Furthermore, I advise the Town regarding separation, severance, transition and/or settlement agreements that “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 Publishing Co. v. Register

of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15.

In the Globe decision, the Court listed information that is properly subject to redaction under the personnel clause of Exemption (c), such as:

“promotion of grade; compensation at a different salary grade; adjustment in compensation; waiver of bumping rights and/or recall rights; entitlement to remain on administrative leave; requirement to tender a letter of resignation; demand of voluntary resignation; reinstatement; layoff; agreement by an agency to remove a letter from a personnel file; agreement by an agency concerning the providing of references and their contents; the requirement that an employee meet with a supervisor to review progress of assigned matters; adjustment of an agency’s records to reflect an employee’s status; adjustment or continuation of employee benefits, such as unemployment assistance, COBRA, and retirement benefits and agreement regarding back wages; recitations concerning grievances, including agreement to withdraw a grievance and acknowledgment by an employee of the absence of a pending grievance; a statement of resolution of all claims concerning termination of employment and prior disciplinary actions; agreement to turn in agency property; global resolution involving the entering of a nolle prosequi by a prosecutorial official; language affirming an agency’s legitimate concern for discipline and an employee’s receipt of a memorandum of verbal discipline; and completion by an employer of harassment training.” Globe, 34-35.

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I note that the Globe decision did not list the name of the recipient of the financial amount of the settlement; nor, the names of the subjects of the settlement agreement as subject to redaction under either the personnel clause or the privacy clause of Exemption (c). Accordingly, I find that the Town has not met its burden of claiming the personnel clause of Exemption (c) to withhold the redacted information within the content of the settlement agreement.

Second clause of (c) - privacy

The Town has also claimed the disclosure of the names of individuals listed in the settlement agreement will subject them to an unwarranted invasion of personal privacy under the second clause of Exemption (c).

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 Comm’r of Real Property

Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by cas 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 (2017). :

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 disputes and reputation. Id. 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 in a law-abiding and efficient manner. Id. at 292.

The Town has not met its burden of demonstrating how disclosure of the names of the individuals listed in the settlement agreement, “would result in personal embarrassment to an individual of normal sensibilities; whether the materials sought contain intimate details of a

highly personal nature; and whether the same information is available from other sources.” See PETA, 477 Mass. at 292.

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In camera inspection

At this time, in order to facilitate a final determination as to the applicability of the exemption claim made by the Town in redacting the settlement agreement, I request that the Town provide this office with an un-redacted copy of the responsive settlement agreement for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the withheld portions of the record. The authority to require the submission of records

~~for-an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C-M.R. 32.08(4); see also G. L. c. 66, § 1.

This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera; therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.LR. 32.08(4)(c).

Furthermore, this office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community.

The Town may provide this office with an explanation of its position regarding the applicability of an exemption to the redacted portions of the responsive record that was provided to Attorney Ames. However, please be advised that unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Order

Accordingly, the Town is ordered to provide this office with an un-redacted copy of the settlement agreement without delay.

Joslin Ham Murphy, Esq. SPR18/1171 ' Page 6 August 16, 2018

Sincerely,

Loleccnr

Rebecca S. Murray Supervisor of Records

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