Neal Simpson v. Hingham, Town of - Town Administrator (SPR 20181531)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supewisor of Records October 29,201 8 SPRl811531 Tom Mayo Town Administrator Hingham Town Hall 210 Central Street Hingham, MA 02043 Dear Mr. Mayo: I have received the petition of Neal Simpson of The Patriot Ledger appealing the response of Town of Hingham (Town) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Simpson requested "[alny settlements or other legal agreements resulting from or related to the reserve fund transfer of $86,500 described in the Dec. 19,201 7 meeting minutes of the Hingham Advisory Committee." Previous appeals This request was the subject of previous appeals. SPR181777 Determination of the Supervisor of Records (June 5,2018 ); SPRl81802 Determination of the Supewisor of Records (June 18,2018 ). In my June 18 thd etermination I found the Town did not meet its burden of demonstrating how the redacted portions of the records are exempt from disclosure. I ordered the Town to provide Mr. Simpson with a response to the request provided in a manner consistent with the order, the Public Records Law, and its Access Regulations (Regulations). The Town provided a response on August 1,2018 . Mr. Simpson appealed, indicating he objects to the redactions and SPR181153 1 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, § 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). 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

Tom Mayo Page 2 October 29,2018 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 Mass. 507, 5 1 1 (1 995) (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. Current appeal The Town initially responded on May 24,2018 by providing redacted records. The Town's August 1 response was sent on behalf of the Town by Attorney Kevin Feeley and St provides additional information regarding the basis of the redactions. This response cites Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 54 (1 979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539,545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Attorney Feeley asserts that "[tlhe requested report, related to or resulting from the 'investigation' is exempt under exemption (a) to the public records law which exempts from disclosure information or records that are specifically or by implication exempt by statute." He further notes that this record "was the report resulting from an investigation of a claim under the Town's Anti-Harassment Policy" and that "[tlhe Town's Policy as well as relevant state laws

Tom Mayo Page 3 October 29,2018 (and guidelines published by MCAD) establish that the process shall remain confidential and the records treated as confidential." Attorney Feeley indicates ". . . it is appropriate (and legal) to redact any information that identifies (or could reasonably lead to identifying) the individual who filed the complaint. This position is based on Chapter 278 of the Acts of 1996 that required the MCAD to adopt a model sexual harassment policy for cities and towns and MGL c 15 1 B (sections 2 and 3) that authorize the MCAD to implement policies and rules that assist in the goals of 15 1 B." He further notes "[tlhe MCAD model policy provides that the identity of the complainant shall remain confidential (and in fact the identity of anyone else who participates in a sexual harassment investigation is to remain confidential to the extent possible)." In addition, Attorney Feeley explains "[tlhe Town has adopted a policy that essentially mirrors the MCAD model policy. When read together[,] exemption (a) to the public records law exempts documents (or portions thereof) that are exempt specifically or by implication under a statute. For the foregoing reasons the report falls into this exemption." 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, 57 (26)(c). Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (20 17).

Tom Mayo Page 4 October 29,201 8 The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family Id. disputes and reputation. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security ,number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 29 1. The public has a recognized interest in knowing whether public servants are carrying out their duties a. in a law-abiding and efficient manner. at 292. With respect to its Exemption (c) claim, the Town asserts that "consistent with the statute, redactions were made for the purpose of protecting the privacy interests of a particularly named individual (a public employee). The individual has requested this confidentiality and for the reasons stated above the Town concurs that confidentiality is appropriate." In camera review It is my determination that based on its responses, the Town has not met its burden to justify each of the redactions. I find that an in camera review of the records would facilitate a review of the Town's exemption claims. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to the Town's 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, 5 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. 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. 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 hnction and would certainly affect our credibility within the legal community.

Tom Mayo Page 5 October 29,201 8 Conclusion The Town is ordered to provide an unredacted copy of the responsive records to this office for in camera inspection without delay. The Town 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: Neal Simpson Kevin Feeley, Jr., Esq.