Patricia Mark v. Tisbury, Town of - Town Clerk (SPR 20182096)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 9, 2019 SPRlS/2096 Hillary Conklin Town of Tisbury-Town Clerk 51 Spring Street P.O. Box 1239 Vineyard Haven, MA 02568 Dear Ms. Conklin: I have received the petition of Patricia Mark appealing the response of the Town of Tisbury (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 19, 2018 Ms. Mark requested a copy of: 1. Complaint filed against [a n identified person] by [ another identified employee]; 2. The report by Chief Arthur Parker (ret) of Billingsgate Associates LLC of Wellfleet, MA that conducted the investigation pertaining to [an identified employee's] complaint, both written and digital recorded; and 3. All email correspondence and documentation between any [Town] employee and Chief Parker pertaining to the complaint by [another identified employee]. Prior Appeal - SPRJ 8/1990 The requested records were the subject of a prior appeal. See SPRl 8/1990 Determination of the Supervisor (Supervisor) of Records (December 17, 2018). This prior appeal was opened based upon the Town's failure to provide a written response to the November 19th request. I closed the SPRl 8/1990 after the Town notified this office that a December 14, 2018 response was provided. On December 14t\ the Town, through its Legal Counsel Brian M. Maser of KP Law, P. C., denied Ms. Mark's requests for the complaint and email correspondence pursuant to Exemption (c) of the Public Records Law. In the Town's response, Attorney Maser notes that Ms. Mark requested the same records on July 16, 2018, and that the Town provided a July 30, 2018 response to address the requests. The Town also informed Ms. Mark in its July 30th and December 14th responses that the Town does not have a document in its possession, custody or control that is responsive to her 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

Hillary Conklin SPR18/2096 Page2 January 9, 2019 request for a report by Chief Parker, nor to the request for email correspondence pertaining to the incident. (Requests Number 2 and 3). Under the Public Records Law, a records custodian is not required to create a record in response to a public records request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); see also 320p. Att'y Gen. 157, 165 (May 18, 1977). Status of requestor It is important for Ms. Mark to understand that her interest in the requested records does not afford her any greater right of access to the requested information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Mark's status will play no role in a determination as to whether the record should be disclosed to the public in its entirety. 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, § lO(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) (custodian has the burden of establishing the applicability of an exemption). The Town's December 14, 2018 response In its December 14th response, the Town informed Ms. Mark that it is withholding the complaint under both clauses of Exemption ( c) of the Public Records Law. Exemption (c) ' Exemption (c) applies to:

Hillary Conklin SPR18/2096 Page 3 January 9, 2019 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 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 Cnty., 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 if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). The Town's December response asserts, "[t]hus, records constituting 'personnel' records, i.e., information with regard to a particular candidate or employee that would be 'useful in making employment decisions,' is absolutely exempt from disclosure as 'personnel information' under the first clause of exemption ( c) of the Public Records Law." Courts have concluded that "personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature." Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). Within the context of the first clause of Exemption (c), the Supreme Judicial Court has determined that records are "personal" if they pertain to a particular individual. Wakefield, 431 Mass. at 799. The record that the Town has withheld is "personal," because it pertains to a particular and identified individual. ih In a January discussion, Attorney Maser explained to a Public Records Division staff attorney that the complaint made by an identified employee contains allegations of possible misconduct by an identified employee which was considered to render an employment decision to either take disciplinary action against the accused, including termination. Therefore, the Town

Hillary Conklin SPR18/2096 Page 4 January 9, 2019 considers the complaint disciplinary documentation that is exempt as personnel information that was useful in making an employment decision under the first clause of Exemption (c ). The Town considers this record as one of the core categories of personnel information that Massachusetts courts have found may be withheld from disclosure under Exemption (c). See Worcester, 58 Mass. App. Ct. at 5. I find that the Town has not met its burden of specificity in withholding the record in its entirety under the first clause of ( c) . Second clause of (c) -privacy The Town's December response also asserts, "[t]he complaint filed against [an identified person] is umesolved at this time. To the extent that a document contains umesolved allegations regarding a particular person, release of the requested document may implicate the privacy rights of the individuals mentioned therein." 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 (2017). 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 disputes and reputation. Id. 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, 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The Town's response indicates, "[r]elease of allegations prior to disposition can result in innuendo and speculation as to the subject's reputation and professional competence." Citing Reinstein v. Police Comm'r of Boston, 378 Mass. 281,292 (1979). Therefore, the Town posits, "[s]uch speculation can adversely affect the subject's standing in the community as well as the subject's ability to perform the subject's current job or obtain future employment." It is the

Hillary Conklin SPR18/2096 Page 5 January 9, 2019 Town's intent to withhold the complaint in its entirety, because the unresolved allegations are "intimate details of a highly personal nature." In the January 7th discussion with a Public Records Division staff attorney, Attorney Maser explained that the allegations raised by an identified Town employee against another identified employee, who is now a former employee, were not investigated to finality. The Town is also withholding the complaint under the second clause of Exemption ( c ). The Town informed this office that it considers the unresolved allegations against a former employee as intimate details of a highly personal nature protected under the second clause of Exemption (c). However, in light of the 3-step test in PETA, the Town has not met its burden of specificity in withholding the record in its entirety under Exemption ( c ). In camera inspection At this time, I wish to inspect the record(s) in camera to verify whether any portion of the individual records may be released after redacting exempt material under Exemption (c ) of the Public Records Law and relevant case law. See 950 C.M.R. 32.08(6) (Supervisor may require an inspection of the requested record(s) in camera during any investigation or proceeding initiated pursuant to 950 C.M.R. 32.08). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of each document. My authority to require the submission of documents for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6) (Supervisor may require an inspection of the requested record(s) in camera during any investigation or proceeding initiated pursuant to 950 C.M.R. 32.08). See also G. L. c. 66, § 1 (Supervisor statutorily empowered to adopt regulations to implement the provisions of the Public Records Law). This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Commission Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Documents 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. Documents 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. 32.03 (defining "custodian" as the government employee who in the normal course of his duties has access to or control over records). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit a copy of the relevant documents to this office upon a promise of confidentiality. This office does not release documents reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, documents reviewed in camera are promptly returned to the custodian. To operate in any other fashion would

Hillary Conklin SPR18/2096 Page 6 January 9, 2019 seriously impede our ability to function and would certainly affect our credibility within the legal community. The Town may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records, or redacted portions of the responsive records. However, 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. Conclusion Accordingly, the Town is ordered to provide this office with an un-redacted copy of the records withheld under Exemption ( c) without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Patricia Mark Brian M. Maser, Esq., KP Law, P. C.