Morgan Louchen v. Berlin, Town of- Fire & EMS Department (SPR 20190350)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 28, 2019 SPR19/350 Fire Chief Paul J. Zbikowski Town of Berlin Fire and EMS 22 Linden Street Berlin, MA 01503 Dear Chief Zbikowski: I have received the petition of Morgan Louchen appealing the response of the Town of Berlin (Town) - Fire and EMS Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Prior appeal In October 2018, Ms. Louchen requested an electronic copy of the following records: "[a]ny and all documentation; agreements; contracts Town Board resolutions or writings that memorialize, offer, suggest, bind or confirm the wages, fees, fiscal arrangements or financial dealings between the Town and [an identified Department employee] from January 1, 2016 through present." The Department provided records responsive to the October request without charging any fees to provide the records. The Department also informed Ms. Louchen that no employment contract exists for the position held by the identified Department employee. On December 19, 2018, Ms. Louchen made a new request for any "disciplinary records" pertaining to the identified employee. In my February 1, 2019 determination, I ordered the Department to provide Ms. Louchen with a response to her request for disciplinary records, identifying any responsive record(s), or categories of record(s) that it has in its possession that it is withholding and claiming an exemption with specificity to withhold the records. See SPR19/l 16 Determination of the Supervisor of Records (Supervisor) (February 1, 2019). Current appeal The Department provided Ms. Louchen with a response to her request, for "disciplinary records" pertaining to an identified employee, denying the request in its entirety pursuant to Exemption (c) of the Public Records Law. Ms. Louchen petitioned the Supervisor, and the current appeal was opened. 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

Chief Paul J. Zbikowski SPR19/350 Page 2 February 28, 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) (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). Exemption (c) The Department's response indicates that it is withholding records responsive to Ms. Louchen's request of disciplinary records pertaining an identified employee under the first 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 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).

Chief Paul J. Zbikowski SPR19/350 Page 3 February 28, 2019 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 Department's response simply states it is withholding disciplinary information that is "useful in making employment decisions" regarding an employee, and that non-disclosure protects the "government's ability to function effectively as an employer." Therefore, the Department has still not met its burden of specificity in withholding the record(s) under the first clause of Exemption ( c) as personnel. Additionally, the Department does not explain why the record cannot be redacted. Duty to identify records In my January 9th determination, I ordered the Department to identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under an exemption. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). In its responses, the Department did not identify how many and what type of record(s) it has in its possession that the Department withheld under the first clause of Exemption (c). 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

Chief Paul J. Zbikowski SPR19/350 Page4 February 28, 2019 (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 seriously impede our ability to function and would certainly affect our credibility within the legal community. The Department 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. Order Accordingly, the Department 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: Morgan Louchen Brian Maser, Esq., KP Law, P. C.