Brooks A. Ames v. Brookline, Town of (SPR 20181352)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records ..... September 21, 2018 _ SPRlS/1352 Demitrios M. Moschos, Esq. Mirick O'Connell 100 Front Street Worcester, MA 01608 Dear Attorney Moschos: I 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, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Ames requested a copy of the employment separation agreement of an identified individual. The Town provided Attorney Ames with a redacted copy of the employment separation agreement, with redaction under both clauses of Exemption ( c ). Prior appeal The responsive agreement was the subject of a prior appeal. See SPRI 8/1170 Determination of the Supervisor of Records (Supervisor) (August 15, 2018). In my August 15th determination, I ordered the Town to provide Attorney Ames with a supplemental response to support its redaction of the agreement under Exemption ( c) of the Public Records Law. On August 30th, the Town provided another response regarding its redactions under both clauses of Exemption (c) and Exemption (o) of the Public Records Law. Attorney Ames petitioned the Supervisor a second time regarding the redacted agreement, and the current appeal, SPR18/1352, 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, § 1 OA( 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 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

Demetrios M. Moschos, Esq. SPR18/1352 Page2 September 21, 2018 order to withhold a requested record. G. L. c. 66, § 1O (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 30th response that accompanied the agreement In its August 30th response, the Town explained the exemptions that apply to each section and page of the agreement that was redacted. The Town indicated that redactions were based on both the personnel clause of Exemption (c ) and the privacy clause of Exemption (c ), and in accordance with the Globe decision. See Globe Newspaper Co., Inc. v. Executive Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Additionally, the Town redacted the identified employee's home address and telephone number, and personal email address under Exemption (o ) of the Public Records Law. Attorney Ames appealed the Town's redaction of the agreement, in particular Section 10. In camera inspection At this time, in order to facilitate a final determination as to the applicability of the Exemption ( c) claim in withholding the redacted portions of the agreement made by the Town, I request that the Town provide this office with an un-redacted copy of the responsive agreement 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 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

Demetrios M. Moschos, Esq. SPR18/1352 Page 3 September 21, 2018 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 Exemption (c) to the withheld portions of the responsive agreement. However, please be advised that unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to puOIIC--recora~--------------- -- ------- ------------ ------pu:DliC Gisclosure as a Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of the employment separation agreement without delay. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Brooks A. Ames, Esq. Patrick J. Ward, Town Clerk