Kevin Rothstein v. Hudson, Town of - Office of the Executive Assistant (SPR 20181311)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 13, 2018 SPR18/1311 Thomas Moses Town of Hudson 78 Main Street Hudson, MA O1 7 49 Dear Mr. Moses: I have received the petition of Kevin Rothstein of WCVB-TV Channel 5 appealing the response of the Town of Hudson Fire Department (Department) to a request for public records. G. L. c. 66, § I OA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Rothstein requested a copy of: I. All invoices, purchase orders and account statements for purchases made since January 1, 2013 by the Department or Department personnel from the following vendors: Grainger, Wal-Mart, Home Depot and Lowes; 2. Any settlement agreement, termination agreement or other document outlining terms of retirement, resignation or other form of separation between John Blood, formerly an employee of the Department, and the Town of Hudson or its representatives; and 3. Any report prepared by APD Management or its principal, Alfred Donovan, in 2017 or 2018 regarding the Department or its principal, Alfred Donovan, in 2017 or 2018 regarding the Department, including any of its personnel and any investigation of spending. In its June 18, 2018 response the Town provided a fee estimate to provide Mr. Rothstein with his Request Number 1. Mr. Rothstein paid the estimate and received the responsive records. Also on June I8t\ the Town advised Mr. Rothstein that no records exist regarding his Request Number 2, and that it is withholding his Request Number 3 under Exemptions (b) and (f) of the Public Records Law. The Town's June 18th response indicated it was withholding records responsive to Request Number 3 under Exemptions (b) and (f). On August 1st\ Mr. Rothstein inquired whether the investigation was completed, and if the records were now public. 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

Thomas Moses SPR18/1311 Page2 September 13, 2018 In August 20th and August 24th responses regarding Mr. Rothstein's request for the report by APD Management, the Town denied the request under the personnel clause of Exemption (c) of the Public Records Law. In its August 24th response, the Town states, "[o]ur decision is final that this internal investigation falls under the personnel exemption." As a result of the Town's denial to provide the APD Management report to Mr. Rothstein, he 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, § 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 Town's August 20, 2018 and August 24, 2018 responses The Town's responses on August 20th and August 24th indicated that the Town is withholding the internal investigation report under the personnel clause 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). 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

Thomas Moses SPR18/13 ll Page 3 September 13, 2018 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 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). 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'g 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 (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 ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). The Town did not meet its burden of specificity in claiming the personnel clause of Exemption ( c) Burden of specificity; duty to segregate The Town denied Mr. Rothstein's request without demonstrating how the personnel clause of Exemption (c) of the Public Records Law supports the withholding of the responsive report in its entirety. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1 O(b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the responsive report, in their entirety, is exempt from disclosure. See 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, § IO(a). 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 withholding the internal investigation conducted by APD Management and/or of Alfred Donovan, I request that the Town provide this office with an un redacted copy of the responsive internal investigation records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the withheld portions of the records. The authority to require the submission of records for an in camera

Thomas Moses SPR18/1311 Page 4 September 13, 2018 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.R. 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 or exemptions to the withheld responsive records. 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 internal investigation records without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kevin Rothstein