Justin Piccirillo v. Uxbridge, Town of - Town Clerk (SPR 20181753)

~\ I .' . i ""' •""' The Common,vealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor ofR ecords November 30, 2018 SPR18/1753 Kelly J. Cote Town Clerk and Records Access Officer Town of Uxbridge 21 South Main Street Uxbridge, MA 01569 Dear Ms. Cote: I have received the petition of Justin Piccirillo appealing the response of the Town of Uxbridge (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Piccirillo requested a copy of: any contracts or agreements relating to the termination/resignation/firings of the following positions: Fire Chief; Police Chief; Accountant; Treasurer; Board of Health Administrator and Conservation Agent, between the dates of Feb. 5, and present." On October 15, 2018, the Town informed Mr. Piccirillo that it has possession ofan agreement between the Town and the former Town Treasurer; however, the Town is withholding the agreement pursuant to the personnel clause of Exemption (c) of the Public Records Law. As a result, Mr. Piccirillo petitioned the Supervisor of Records (Supervisor), and this appeal was opened. The Public Records Lmv 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 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) (c ustodian has the 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

Kelly J. Cote SPR18/1753 Page2 November 30, 2018 burden of establishing the applicability of an exemption). The Tow11 's October 15, 2018 response - Exemptio11 (c)(perso1111el) In its October 15th response, the Town informed Mr. Piccirillo that the responsive agreement between the Town and the former Town Treasurer has been withheld, in its entirety, under the personnel clause of Exemption (c ). Exemption (c ) applies to: 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 Town has claimed that the first clause of Exemption (c ), the personnel clause, applies to this request. Therefore, only the first clause of Exemption (c) will be discussed in this determination. The first clause 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 persom1el 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 pe1taining to a paiticular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). However, the courts have also discussed specific categories of records that niay 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 Cnty., 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Fmther, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding mallller." 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 patt of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). The Town's October 15th response indicates that the employment separation agreement is exempt from disclosure under Exemption ( c ). The Town asserts, "[t]his exemption was enacted

Kelly J. Cote SPR18/1753 Page 3 November 30, 2018 to protect the government's ability to function effectively as an employer. Such exempt files include, but are not limited to, applications, employee work evaluations, disciplinary documentation, and promotion, demotion or termination information. Consequently, the Town maintains the agreement is not subject to disclosure." However, in a November 20, 2018 telephone discussion with you after this appeal was opened, a Public Records Division staff attorney explained that a case pertaining to the public's access to settlement agreements between goverlll11ent entities and government employees was decided in 2013. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). In the Globe decision, the Court found that while employment separation agreements are public, the agreement may be properly subject to redaction under the personnel clause of Exemption (c). See Id. at 34-35. Burden ofs pecificity - Duty to segreg(lte The Town has not met its burden in responding to this request and in claiming Exemption (c) without any specificity. The Public Records Law states that "the burilen shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. A custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or redacted po11ion of the responsive record. See G. L. c. 66, § 1O (a). Moreover, the Town has a duty to segregate those portions of a record that are specifically exempt from disclosure, and provide the balance of the record. G. L. c. 66, § lO(a). Co11clusio11 Given that the Town has not met its burden of specificity in claiming Exemption ( c), the Town is ordered to review the record, redact where necessary and provide Mr. Piccirillo with the responsive record, in a manner consistent with this order, the Public Records Law and its Regulations within ten (I 0) 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, ~ Rebecca S. Murray Supervisor of Records cc: Justin Piccirillo