Morgan Hughes v. Rockland, Town of - Board of Selectman (SPR 20181369)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 26, 2018 SPR18/1369 Christopher Kenny, Esq. Clifford & Kenny, LLP 31 Schoosett Street, Suite 405 Pembroke, MA 02359 Dear Attorney Kenny: I have received the petition of Morgan Hughes of the Boston Globe appealing the response of Town of Rockland (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Hughes requested a copy of the "Discrimination and Harassment Solutions LLC report from July 2, 2018 'Investigations of Complaints Against Deirdre Hall and Allen Chiocca.'" The Town initially responded on September 6, 2018 by denying access to records under Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). 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) (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. Appeal In its September 6th response the Town asserts "[t]he above referenced requested record is a personnel file record. Such records are exempt from disclosure under the public records law pursuant to G.L. c. 4, § 7(26)(c) and thus will not be produced." 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

Christopher Kenny, Esq. SPR18/1369 Page2 September 26, 2018 Exemption (c) Exemption ( c) permits the withholding of: 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, relevant to this appeal, 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. 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 County, 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 Globe Newspaper Co., 388 Mass. at 435 ("Not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection"); Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). In her appeal petition Ms. Hughes asserts "[t]he record is not a confidential personnel file, but an investigation by an outside party of a public official (Rockland, MA Town Administrator Allan Chiocca)." She also notes that the record "document has already appeared in Fox News." In a supplemental response provided on September 14, 2018, the Town indicates that the responsive record "is a report regarding the performance of an employee of the Town of Rockland ('Town') and thus such record is[] 'personnel...information' within the meaning of

Christopher Kenny, Esq. SPR18/1369 Page 3 September 26, 2018 G.L. c. 4, § 7(26)(c) and therefore is exempt from disclosure under the public records law." The Town also notes "[i]t is immaterial that the report was drafted by an attorney contracted by the Town. It is also immaterial that the report has previously been disseminated by party(s) other than the Town." In the Wakefield decision referenced above, a Superintendent conducted an investigation into allegations regarding a teacher. Wakefield, 431 Mass. at 794. Following the investigation the Superintendent wrote a report, which consisted of seven pages and included nine pages of exhibits. Id. at 794 n. 7. The Supreme Judicial Court (SJC) found that the report was exempt from disclosure and indicated "[w]e have no doubt that such a report is 'personnel' information as that term is used in the first category of the exemption." Id. at 797. I find it is unclear how the responsive record is sufficiently similar to the report in Wakefield to warrant withholding it from disclosure under the personnel clause of Exemption (c). Further, the Town has not met its burden to show how portions of the responsive record, particularly those that pertain to an elected official as opposed to a Town employee, fall within one of "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' that may be withheld under the personnel clause of Exemption (c). 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, § IO(a). Conclusion Accordingly, the Town is ordered to provide Ms. Hughes with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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, ~r~ Supervisor of Records cc: Morgan Hughes