Richard F. Kennedy Jr. v. Norfolk County Commissioners (SPR 20181378)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 1, 2018 SPRlS/1378 Nancy R. McNealy Public Records Access Officer County of Norfolk Commissioners Office 614 High Street, Suite 201 P.O. Box 310 Dedham, MA 02027-0310 Dear Ms. McNealy: I have received the petition of Richard F. Kennedy appealing the response of the Norfolk County Commissioners (Commissioners) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kennedy requested 19 categories ofrecords, many of which relate to the "County Surveyor." The Commissioners initially responded on July 26, 2018 by providing a fee estimate of $80.00 for the production of certain responsive records, but also indicated other records would be withheld under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). I understand Mr. Kennedy paid the fee amount and the Commissioners provided certain responsive records on August 23, 2018. This request was the subject of a previous appeal. See SPRl 8/1331 Determination of the Supervisor of Records (September 17, 2018). 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, § 1O (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 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

Nancy R. McNealy SPR18/1378 Page 2 October 1, 2018 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal Mr. Kennedy's current appeal is based on a September 17, 2018 letter. Subsequent to the opening of this appeal, the Commissioners provided a supplemental response on September 27, 2018. Open Meeting Law 11 Mr. Kennedy's September 1i appeal references the release of executive session minutes which raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to public status and/or content of the executive session minutes at issue. See G. L. c. 30A, § 23. It is recommended that the parties contact the AGO should they seek a determination on this issue. Existence of additional records . Mr. Kennedy also asks "is there to be certification that there were no documents in existence under other requests including the existence of an approval of the work undertaken in the County Engineering Office on June 21, 2018 ?" In its September 2ih response the Commissioners asserts that the records provided on August 23, 2018 and September 11, 2018 "constitute all of the records in the possession of the Commissioners that are responsive to Kennedy's public records request that are not exempt from disclosure as those exemptions are detailed in the response of the Commissioners dated July 26, 2018 and/or as detailed in the Commissioners' response to the SPR appeal 18/1331, dated September 11, 2018." 11 In light of the Commissioners' September 2i response, I find they have met their burden in responding to this portion of the appeal. Please note that the duty to comply with requests for records extends only to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). The applicability of Exemption (c) will be discussed below. Redactions within records Mr. Kennedy also raises issues about potential redactions within the records he received. In particular, he notes "the top portion of an email message from the Administrator to the County Surveyor has an obvious gap between the sending address and the message forwarded (See Exhibit A). I also received a copy of an email message from the County Surveyor to the County Administrator concerning the proposed IT /Maintenance protocol being discussed without the attachments that seem to be the basis of the email (See Exhibit B)."

Nancy R. McNealy SPR18/1378 Page 3 October 1, 2018 In its September 2ih letter the Commissioners indicate "[a]ll of the documents provided to Kennedy on August 23, 2018 were provided in full, without redaction of any kind. The 'obvious gap' shown on the top portion of an email that Kennedy attached as Exhibit A to his September 17, 2018 letter is a natural part of the email and existed as such in the original document." With respect to the attachments referenced by Mr. Kennedy, the Commissioners assert "[a]ll attachments to any emails were also provided with the emails produced; the attachment to the June 27, 2018 email fromjmcnichols@norfolkcounty.org to Frank Hegarty, attached as Exhibit B to his September 17, 2018 letter, was included as the next page of the documents provided to Kennedy on August 23, 2018 (page 50)." In light of the Commissioners' September 2ih response, I find they have met their burden in responding to this portion of the appeal. See G. L. c. 66, § lO(a)(ii), (b)(ii). Records regarding "grievances" Mr. Kennedy indicates he is seeking "any written grievance a non-union employee who manages a county department in which that non-union management employee grumbles of unfairness or perhaps resentment over a particular course of treatment. Again, the term 'grievance' should not be allowed to hide otherwise public communications." This request appears to be "Request 18" from Mr. Kennedy's July 19th request which specifically seeks a "Copy of any written grievance and/or written complaint or document filed by the County Surveyor to the County Director, County Administration, and/or County Commissioners." The Commissioners continue to cite Exemption ( c) and assert that this record "is not a mere communication between public officials, but includes allegations and complaints regarding performance of a particular employee of the Commissioners. As such, it is exempt from disclosure." In camera review It is my determination that an in camera inspection of these responsive records would facilitate a determination as to the applicability of Exemption ( c ). See 950 C.M.R. 32.08(4 ). After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature 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 an in camera inspection is necessary to make a proper finding.

Nancy R. McNealy SPR18/1378 Page 4 October 1, 2018 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). 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. Conclusion Accordingly, the Commissioners are ordered to provide this office with an unredacted copy of the responsive records regarding grievances as described above without delay. The Commissioners may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard F. Kennedy Nancy Campany, Esq. Carrie Benedon, Esq.