James J. DeVellis v. Foxboro, Town of - Town Clerk (SPR 20190062)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 25, 2019 SPR19/062 Robert E. Cutler, Jr. Town Clerk Town of Foxborough 40 South Street Foxborough, MA 02035 Dear Mr. Cutler: I have received the petition of James J. DeVellis 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, Mr. DeVellis requested copies of two executive summaries, detailed full reports, and invoices. I understand this request is similar to the subject of appeals submitted by other requestors. See SPRl 8/1731 Determination of the Supervisor of Records (December 5, 2018); SPR18/2076 Determination of the Supervisor of Records (January 8, 2019); SPR18/2098 Determination of the Supervisor of Records (January 9, 2019). Mr. DeVellis' request was also the subject of a previous appeal. See SPRl 8/2065 Determination of the Supervisor of Records (January 7, 2019). 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); 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). 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. 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. SPR19/062 Page 2 January 25, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Appeal The Town provided responsive records with portions redacted pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f); G. L. c. 214, § lB. In his appeal petition Mr. DeVellis indicates" ... I feel that the [T]own has over-redacted the records to the point that it renders them meaningless to any reviewer. I understand the privacy expectation, however having knowledge of the issue at hand, I feel that the [T]own has over redacted to the point ofrendering the reports meaningless." Further, in a January 23, 2019 email to this office Mr. DeV ellis notes "[i]t is my position that the 3 reports should be redacted to protect the names of any witnesses who were interviewed so as not to hinder any candor or cooperation from town employees in future investigations. I also feel it appropriate to take out any private medical history or personnel information that falls into one of the core categories." However, he reiterates his belief that the records are "over redacted." In camera inspection In order to facilitate a determination as to the applicability of the Town's exemption claims, the Town must provide this office an un-redacted copy of the responsive records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to your 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, § 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 function and would certainly affect our credibility within the legal community.

Robert E. Cutler, Jr. SPR19/062 Page 3 January 25, 2019 Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: James DeVellis