Tracy Vasile v. Foxboro, Town of - Town Clerk (SPR 20182098)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 9, 2019 SPRlS/2098 Robert E. Cutler, Jr. Town Clerk and Records Access Officer Town of Foxborough 40 South Street Foxborough, MA 02035 Dear Mr. Cutler: I have received the petition of Tracey Vasile appealing the response of the Town of Foxborough (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Vasile requested a copy of: "the final report produced by the investigator regarding the [investigation of an identified person]." In a December 22, 2018 response, the Town denied Ms. Vasile's request for the report in its entirety pursuant to the first clause of Exemption (c ) of the Public Records Law. As a result of the Town's denial, Ms. Vasile petitioned the Supervisor of Records (Supervisor), and this appeal was opened. The Public Records Law 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). 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

Robert E. Cutler, Jr. SPR18/2098 Page 2 January 9, 2019 Exemption (c) - personnel clause 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 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 22nd response asserts, "[i]n regards to your request, the [requested] report is a disciplinary report involving the performance of an employee of the Town and thus such record is a 'personnel. .. information' within the meaning of G. L. c. 4, § 7(26)(c) and therefore is exempt from disclosure under the [P]ublic [R]ecords [L]aw." Furthermore, the Town asserts, "[t]he courts have interpreted that the Legislature has determined that 'personnel files and information' relating to an individual are absolutely exempt from disclosure." Citing Globe, 3 88 Mass. at 434; Wakefield, 431 Mass.at 797-798.

Robert E. Cutler, Jr. SPR18/2098 Page 3 January 9, 2019 While the Town claims that the report is disciplinary information involving a performance review of an identified individual, the Town has not met it burden of specificity in withholding the report in its entirety under the first clause of Exemption (c). Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the responsive report, in their entirety, is exempt from disclosure under Exemption (c). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289- 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Records custodians must produce any non-exempt, segregable portions of public records. G. L. c. 66, § lO(a). In camera inspection At this time, I wish to inspect the record(s) in camera to verify whether any portion of the record 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 record, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. 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

Robert E. Cutler, Jr. SPR18/2098 Page4 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 record, or redacted portions of the responsive record. 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. It is my understanding that a Public Records Division staff attorney contacted you regarding this appeal. Conclusion Accordingly, the Town is ordered to provide this office with an un-redacted copy of the report withheld under Exemption (c) without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Tracey Vasile