Amy Leonard v. Hingham, Town of - (SPR 20181662)

The Cornrnonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 27,201 8 SPR18/1662 Thomas Mayo Town Administrator Town of Hingham 210 Central Street Hingham, MA 02043 Dear Mr. Mayo: I have received the petition of Amy Leonard of 95.6 FM WATD News appealing the response of the Town of Hingham (Town) to a request for public records. G. L, c. 66, 9 10A; see 950 C.M.R. 32.08(1). Specifically, on June 6,2018, Ms. Leonard requested "[a] less redacted copy of the settlement agreement in the amount of $86,500 that was issued to a Town employee since this information has already been released to another news outlet." Previous appeals This request was the subject of three previous appeals. See SPR18/1386 Determination of the Supervisor of Records (October 1,2018 ); SPRl8/1169 Determination of the Supervisor of Records (August 21, 20 18); SPR18/896 Determination of the Supervisor of Records (July 2, 201 8). In my October lStd etermination, I found that with respect to the Town's Exemption (a) claim, it remained unclear how the act, statute and Town policy claimed in its August 2nd response permit withholding of the redacted portions and uncertain whether the redacted portions fall within a type of information that is specifically or by implication exempt by statute pursuant to Exemption (a). Specifically, it was unclear what type of information is being redacted and how any of the cited statutes exempt that type of information. With respect to its Exemption (c) claim, I found that it was uncertain which clause of Exemption (c) the Town is claiming and how either clause permits withholding of the redacted portions. I closed SPRl8/1386 by ordering the Town to review the records, redact where necessary, and provide Ms. Leonard with responsive records, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The Town provided another response to Ms. Leonard on October 26,201 8. Unsatisfied with the Town's One Ashburton Place, Room 171 9, Boston, Massachusetts 02 108 (6 17) 727-2832- Fax: (6 17) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Thomas Mayo Page 2 November 27,20 18 response, Ms. Leonard petitioned this office and this appeal, SPR1811662, 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, 5 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, § 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, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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 Towa 's October 26thr esponse In the Town's October 26thr esponse, it indicates that it provided Ms. Leonard with a less redacted version of the responsive record. The Town indicates that "portions of the document are exempt from the public records law under exemptions (a) and (c) because they contain (1) personal and identifying information and (2) personnel record information of employees." The Town explains that "[s]uch portions of the record are exempt because the disclosure of identifying information relating to the employeelparty to the agreement may constitute an unwarranted invasion of privacy (e.g., due to the sensitive nature of the matter that was settled and because the individual has requested anonymity). With respect to portions of the settlement agreement that are deemed personnel records information of Town employee(s), such records are statutorily exempt under exemption (c) of the Public Records Law. G.L. c. 4, s. 7(26)(a) and (c) ." Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with speciJicity the exemption which applies." G. L. c. 66, 5 lO(b)(iv)(emphasis added); see also Globe News~aperC o. v. Police Cornm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The Town's response did not contain the specificity required in a denial of access to public records. Instead, the Town's response merely cites Exemptions (a) and (c) without any further explanation as to the exemption's applicability to the requested records. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Town did not satisfy its burden in responding to this records request. The Town is advised that a records custodian is required to not only cite an

Thomas Mayo Page 3 November 27,20 18 exemption, but to specifically explain the applicability of the exemptiofi to the requested records in order to comply with the Public Records Law and its Access Regulations. The Town is additionally advised to review my previous determination regarding the specific requirements for withholding information under Exemptions (a) and (c). See SPR1811386 Determination of the Supervisor of Records (October 1,201 8). Conclusion Given that the Town has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Town is ordered to review the records, redact where necessary, and provide Ms. Leonard with responsive records, 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. The Town may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Failure to do so may result in referral of this matter to the Office of the Attorney General. See G. L. c. 66, tj 10A(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Amy Leonard