Joe Difazio v. Cohasset, Town of - Town Manager (SPR 20190507)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 19, 2019 SPR19/0507 Christopher Senior Town Manager Town of Cohasset 41 Highland A venue Cohasset, MA 02025 Dear Mr. Senior: I have received the petition of Joseph DiFazio of The Patriots Ledger appealing the response of the Town of Cohasset (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 5, 2019, Mr. DiFazio requested "[a]ny records, including electronic communication, relating to any Title IX investigations undertaken by Cohasset's insurance carrier on the town's public school system related to [an identified former school employee] and/or the school's response to allegations against him and [t]he final report of any such Title IX investigations." After several communications between Mr. DiFazio and the Town, the Town provided a formal response on February 28, 2019, denying access to responsive records pursuant to Exemptions (c) and (d) of the Public Records Law and indicating that a certain record is not in its possession. G. L. c. 4, § 7(26)(c), (d). Unsatisfied with the Town's response, Mr. DiFazio petitioned this office and this appeal, SPR19/0507, was opened as a result. 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 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

Christopher Senior SPR19/0507 Page 2 March 19, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town's February 28th response In its February 28, 2019 response, the Town indicates that" ... the documents [Mr. DiFazio] requested are not in the possession, custody or control of either the Town or the Schools, nor were the documents made or received by officers or employees of either entity. Further, the Town is aware that the School's insurance company retained an attorney ... to represent the Town in anticipation of a possible insurance claim. Attorney Davis is not an officer or employee of the Town. Consequently, the documents are not within the definition of public records contained in M.G.L. c. 66, sec. 10." The Town further asserts that "[w]ithout admitting that the documents are public records, Attorney Davis retained an investigator to conduct an investigation. Any investigation report received by Attorney Davis is exempt from the definition of public records because such a report constitutes attorney work product and falls within the following exemptions to the definition of Public Records, M.G.L. C. 4, sec. 7, clause 26." The Town claims the records are exempt under "(c ) also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; and ( d) inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based." Exemption (c) Exemption ( c) permits the withholding of: 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). Second clause ofE xemption (c) - privacy Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption ( c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to

Christopher Senior SPR19/0507 Page 3 March 19, 2019 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. Exemption (d) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, §7 (26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure).

Christopher Senior SPR19/0507 Page4 March 19, 2019 Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. The Town did not identify the records, categories ofrecords or portions ofrecords in its possession that it intends to withhold from disclosure under Exemptions (c) and (d). 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). Therefore the Town must identify records in its possession that it withheld. Further, the Town's response did not contain the specificity required in a denial of access to public records. Instead, the Town's response cites Exemptions (c) and (d) without any further explanation as to the exemptions' applicability to the requested records. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Consequently, I find the Town has not satisfied its burden in responding to this records request. As stated above, the custodian bears the burden to prove with specificity any exemption that applies. G. L. c. 66, § 1O (b )(iv). Also, a custodian of a record shall not only cite an exemption but must explain with specificity why the exemption applies to a withheld or redacted portion of the responsive record in order to comply with the Public Records Law and its Access Regulations. G. L. c. 66, § lO(a). Additionally, it is unclear why the Town is withholding the records in their entirety. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). Agency relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein, 378 Mass. at 289-90. In the Town's response, it indicated that the requested records "are not in the possession, custody or control of either the Town or the Schools, nor were the documents made or received by officers or employees of either entity." However, the Town also indicated in its response that it" ... is aware that the School's insurance company retained an attorney ... to represent the Town in anticipation of a possible insurance claim." The Town is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created.

Christopher Senior SPR19/0507 Page 5 March 19, 2019 In light of the above information, it is unclear whether an agency relationship exists between the Town and the School's insurance company. It is additionally uncertain how the Town would not be entitled to obtain the records requested by Mr. DiFazio from the School's insurance company, the attorney retained by the School, or the investigator. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607-08 (1996) ( discussing agency relationship between a public and private entity within the context of the Public Records Law). I find the Town must provide additional information regarding this issue. Additional records In accordance with the Public Records Law, a custodian is expected to use their superior knowledge of the records in his or her custody to assist the requestor in obtaining the desired information. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). A records access officer must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § 1O (b )(vii). In his February 5th request, Mr. DiFazio also requested "[a]ny records, including electronic communication, relating to any Title IX investigations ... " Although the Town appears to refer to an investigative report, it remains unclear if the Town possesses additional records relating to any Title IX investigation that may be responsive to Mr. DiFazio's request. The Town must clarify this matter. Conclusion Given that the Town did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Town is ordered to review the records, redact where necessary, and provide Mr. DiFazio with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. The Town may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~a~ Supervisor of Records cc: Joseph DiFazio