James P. Kinsella v. Bourne, Town of (SPR 20190129)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 4, 2019 SPR19/129 Barry H. Johnson Town Clerk Town of Bourne Dear Mr. Johnson: I have received the petition of James Kinsella of the Enterprise Newspapers appealing the December 7, 2018 response of the Town of Bourne (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kinsella requested a copy of records pertaining to an investigation of an identified Town official involving the 2018 transfer of a firefighter from the Town's Fire Department to the Town of Easton's Fire Department. Mr. Kinsella' s original May 29, 2018 request included any records in the Town official's personnel file pertaining to the Town official's actions in the transfer of the firefighter. Prior appeals -SPR18/875; SPR18/951 and SPR18/1498 The responsive records were the subject of three prior appeals. See SPR18/875; SPR18/951 and SPR18/1498 Determinations of the Supervisor of Records (Supervisor) (June 27, 2018; July 10, 2018 and November 20, 2018). In my June 2ih determination, I found that the Town did not meet its burden of specificity in withholding the responsive records in their entirety under Exemptions (b) and ( c) , and that the Town did not identify the records, categories of records or portions of records in its possession that it intends to withhold under those exemptions. The Town provided Mr. Kinsella with the responsive April 18, 2018 executive session meeting minutes, redacting one paragraph of the minutes under Exemptions (b) and (c). In my July 1o th determination, I found that the Town did not meet the burden of specificity in claiming the exemptions to redact a large portion of content from the minutes, and did not identify any additional records responsive to the request that have been withheld. Given that the Town did not provide the specificity required in withholding content from the records, I ordered the Town to review the requested records, redact only where necessary and provide the requested records. 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

Barry H. Johnson SPR19/129 Page2 February 4, 2019 Previous appeal-SPRJB/1498 The Town responded to my July 10th order, for appeal SPR18/951, by providing Mr. Kinsella with the executive session minutes, redacting the third paragraph under Exemption ( c ). However, the Town did not provide specificity in claiming Exemption ( c) to withhold the redacted portion of the minutes, and did not identify other records it may be withholding regarding any investigation that the Town conducted of an identified town official involving the 2018 transfer of a firefighter from the Town's Fire Department to another Massachusetts's town. Mr. Kinsella appealed the redaction of the executive session minutes under Exemption (c), and the Town's lack of identifying any other records pertaining to the underlying matter. As a result, on October 24, 2018, I ordered the Town to provide all the responsive records for in camera inspection. On October 29, 2018; however, the Town only provided this office with an un-redacted copy of the executive session minutes for in camera inspection. In the course of reviewing the executive session minutes in camera, this office inquired and was advised by the Town's Legal Counsel, Robert S. Troy, Esq. of Troy Wall Associates that the only other record that the Town is in possession of besides the executive session minutes is a letter memorializing the employment decision and disciplinary action pertaining to the identified employee. The Town informed this office it withheld the letter under the personnel clause of Exemption ( c ), but did not meet its burden of specificity in withholding the letter under the first clause of Exemption (c). On November 2ot\ I ordered the Town to provide an un-redacted copy of the responsive letter for in camera inspection so that this office could make a final determination on the applicability of the Town's first clause of Exemption (c) to withhold the letter in its entirety. In his December 7, 2018 letter, Town Clerk, Barry Johnson states, "[t]his letter is to respectfully inform you that without the consent of the employee the [T]own is not willing to provide any information within the scope of [the] Wakefield case." 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).

Barry H. Johnson SPR19/129 Page 3 February 4, 2019 In camera inspection As previously ordered in October and November 2018, I wish to inspect the responsive letter in camera to verify whether any portion of the individual records may be released after redacting exempt material under the Town's Exemption (c) claim. 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 inspection. 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 seriously impede our ability to function and would certainly affect our credibility within the legal community. The Town may provide this office with a further explanation of its position regarding the applicability of its exemption claims to accompany 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.

Barry H. Johnson SPR19/129 Page4 February 4, 2019 Conclusion Accordingly, the Town is ordered to provide this office with an un-redacted copy of the responsive letter for in camera inspection without delay. Failure to comply with this order may result in a referral of this matter to the Office of the Attorney General for further action. G. L. c. 66, § lOA(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: James Kinsella, Enterprise Newspapers Robert S. Troy, Esq., Troy Wall Associates