Kim Sherwood v. Town of Topsfield - Town Clerk (SPR 20181334)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 18,2018 SPR1811334 Mary E. Willis Town Clerk Town of Topsfield 8 W. Common Street Topsfield, MA 019 83 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, tj 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Sherwood requested a "copy of the job scoring complete by Selectman Bermudez, A1 Wallace and Roberta Sapienza for the new position of Town ClerM RAO." Previous appeals This request was the subject of two previous appeals. SPRl811161 Determination of the Supervisor of Records (August 17,2018 ); SPR1811002 Determination of the Supervisor of Records (July 23,2018 ). I closed SPR181116 1 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 29,201 8, the Town provided a response to Ms. Sherwood. Unsatisfied with the Town's response, Ms. Sherwood petitioned this office and this appeal, SPRl811334, 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, tj 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, 5 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, tj lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. One Ashburton Place, Room 171 9, Boston, Massachusetts 02 108 (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Mary E. Willis Page 2 September 18 ,2018 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the burden of 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. The Town 'sA ugust 29th response Request for 'j 'ob scoring complete by Selectman Bermudez ... " In its August 29thr esponse, the Town indicates that "Selectman Bermudez, on her own and not as part of any formal or official process, undertoolt to complete the scoring matrix form utilized by the Town Administrator in connection with the Town Administrator's recommendation that the Town Clerlt position be reclassified, in an effort to better inform herself in preparation for any Board of Selectmen discussion on this topic. She did not share the document with the Town Administrator, or her fellow members on the Board, and she did not retain it; instead, she discarded it after she completed it. The Town. therefore. does not have responsive records." The Town further indicates that "[elven if Selectman Bermudez retained the document, it would be subject to withholding under Exemption (e), for the reasons set forth in the Town's August 2ndr esponse. It remains the Town's position that Selectman Bermudez' completion of the job scoring sheet for her own personal use and information, basically as 'homework' in anticipation of the Board discussions on the subject, and not otherwise shared with any other Town officials/employees, is a document properly categorized as a 'personal' note that was not maintained in any governmental file (whether labelled as a 'worlting file' or not)." Request for 'j'ob scoring complete by... A l Wallace and Roberta Sapienza " In its August 29t" response, the Town indicates that it "reiterates its position that neither A1 Wallace or Roberts Sapienza were acting in any official capacity when they provided guidance and input to the Town Administrator in connection with her consideration of, and subsequent recommendation to the Board of Selectmen concerning reclassification of the Town Clerlt position. Both individuals has previously served as members of.. .the now-defunct Personnel Advisory Board /Advisory Committee, but did not hold any town office or position at the time the Town Administrator conferred with them in regard to the reclassification question. They are not 'vendors' but merely interested former Town officials who had experience from their prior service that the Town Administrator deemed useful to her in considering the possible reclassification of a town position." The Town further indicates that "even assuming for the sake of argument that these individuals are considered 'public employees or officials', and assuming for the salte of argument that this makes any records made or received by either individual 'public records', the Town once again states that the job scoring sheets completed by Mr. Wallace and Ms. Sapienza are individual notes of each of them. These sheets were not shared with the Town Administrator,

Mary E. Willis Page 3 September 18,2018 although the conclusions reached by Mr. Wallace and Ms. Sapienza after having each individually completed the scoring sheet (i.e., a 'score'), was discussed with her, just as if a town employee took notes in preparation for any meeting, presentation, or discussion. Although the Town Administrator did refer to individual 'surveys' and scorings done by Mr. Wallace and Ms. Sapienza during the Board of Selectmen's meeting on May 18,2018 , it is a possible misinterpretation of her comments to conclude that Mr. Wallace or Ms. Sapienza shared actual documents with the Administrator as part of her consultation with them. Once again, such records would be subject to withholding pursuant to Exemption (e), for the reasons set forth in the Town's August 2ndr esponse and above." The Town asserts that "neither Mr. Wallace nor Ms. Sapienza retained these notes. They were never provided to the Town Administrator or any other town official or employee, and thus the Town could not provide them to you when you requested them." Public records; public employees or officials; agency relationship Despite the Town's August 29'" response, it remains unclear why Mr. Wallace and Ms. Sapienza would not be considered public employees or officers in this instance and their "job scoring[sIn public records. See G. L. c. 268A, 5 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 sewing 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, 5 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). Specifically, it is unclear why Mr. Wallace and Ms. Sapienza do not constitute "person[s] performing services for.. .a municipal agency. . .by... engagement.. . on a[n] . . .intermittent or consultant basis.. ." See G. L. c. 268A, 5 l(g). 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, 5 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289- 90 (1979). 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

Mary E. Willis Page 4 September 18,2018 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 himlher 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). 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 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 in their entirety are notes that are personal to any one employee and not required to be part of the government's files. Specifically, it is unclear how the entire job scoring sheets/surveys completed by Selectman Bermudez, Mr. Wallace and Ms. Sapienza using a pre-existing scoring form constitute personal reflections prepared by an employee on work related activities or notes created by an employee to assist himlher in preparing reports for other employees or for the files of the governmental entity. This is especially unclear given statements made in the Town's selectman meetings that the "scoring sheet" is "a tool" that had been provided to the Town by its "consultants" in 2014 and is described as "a position classification, points scheduler, grading scoring mechanism" consisting of "fourteen categories that [are] evaluated for each position." See TownOfTopsfieldMA, Selectmen 5/21/2018, YOUTUB(EM ay 22,2018 ), https://www.youtube.com/watch?v=XydVjpuzgEs&t=37Os; TownOfTopsfieldMA, Selectmen 6/25/2018, YOUTUB(EJ une 25,20 18 ), https://www.youtube.com/watch?v=~wFHtxW4MFo&t=456s 8. Therefore, I find the Town has not met its burden in establishing any existing job scoring sheets/surveys may be withheld in their entirety pursuant to Exemption (e) of the Public Records Law. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, $ 10(a).

Mary E. Willis Page 5 September 18,201 8 Records Management Please be aware safeguards must be instituted by the Town to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, 5 8; G. L. c. 66, 5 13; G. L. c. 66, 5 15. For further guidance in records management and retention, the Town may contact the Records Management Unit (RMU) at 6 17- 727-28 16. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. 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, 5 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979). Whenever original public of Massachusetts, Pub. Records Div., A Guide to the Massachusetts Public Records Law (2017); see also G. L. c. 66, 5 1. Even where it is necessary to keep original public records in a location -- other than the municipal building, the records access officer has a duty to maintain copies of those records within the municipal building and make the public records available in a location Id. convenient to the general public for inspection and copying. It should be noted that while there are questions regarding the Town's records management practices, the duty to comply with request for records extends only to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, 5 1O (a)(ii). The Town is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. G. L. c. 66, 5 lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). In email correspondence dated July 29,2018 , Selectman Bermudez indicates she has "discarded" the "scoring sheet." Whereas, the Town cannot obtain this requested record, I find the Town has met its burden in responding to this portion of Ms. Sherwood's request. However, given that the Town is under an obligation to obtain and maintain public records created outside of its offices and to make those records and any public records located outside the municipal offices readily available for public inspection, I find the Town's response does not sufficiently explain why it cannot produce at least segregated portions of the responsive records with respect to the job scoring sheetslsurveys completed by Mr. Wallace and Ms. Sapienza. Further, the Town must clarify whether the scoring sheets completed by Mr. Wallace and Ms. Sapienza still exist.

Mary E. Willis Page 6 September 18,2018 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, cc: Kim Sherwood