Heather Harding v. Foxboro, Town of - Town Clerk (SPR 20190586)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 4, 2019 SPR19/0586 Robert E. Cutler, Jr. Town Clerk Town of Foxborough 40 South Street Foxborough, MA 02035 Dear Mr. Cutler: I have received the petition of Heather Harding appealing the response of the Town of Foxborough's Town Clerk (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Harding filed a "public records request for a redacted claims summary chart/matrix which was prepared in conjunction with an investigative report." Previous appeal This request was the subject of previous appeals. See SPRl 8/1731 Determinations of the Supervisor of Records (December 5, 2019); SPR18/2076 Determination of the Supervisor of Records (January 8, 2019; March 4, 2019); SPR19/0535 Determination of the Supervisor of Records (March 19, 2019). This office closed SPR19/0535 after the Town provided Ms. Harding with a response to her request on March 19, 2019. Ms. Harding appealed that response to this office on March 20, 2019: Current appeal Ms. Harding states in her March 20th appeal that she believes "the reports in this case should be provided in the same manner as it was in Wakefield with only the medical and core personnel information redacted." Ms. Harding believes that "[t]here is a lot more than core identifying information included in [the reports]. Given that public employees have a diminished expectation of privacy I would have expected the town to comply with your order and not continue to attempt to fight the release of public information in what I feel at this point is nothing more than a stall tactic." 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. SPR19/0586 Page 2 April 4, 2019 Exemption (c) The Town cites Exemption (c ) to justify the withholding of information related to the date and time of the incidents as well as the dates the reports were submitted to the Town. Exemption ( c) of the Public Records Law, also known as the privacy exemption, 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) 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). In the Town's March 15111 letter you explain to Ms. Harding "it is not possible to provide additional portions of the records in a de-identified manner because the identification of the relevant individual(s) is clearly known to [her]. The Town states "it would be impossible for the Town to provide [her] with any 'de-identified' information because [she is] aware of the individual to whom the information is related." You indicate to Ms. Harding that as she was "interviewed as part of the investigation and both the Investigator and Labor Counsel have met with [her] regarding the conclusion of the investigation. Thus, pursuant to [her] appeal and [her] own admissions, [s he is] clearly able to identify (and have identified) the individual to whom the redacted information pertains." Ms. Harding also has "specifically name[d] the individual with whom the report(s) are related on numerous occasions." I find the Town has met its burden to show how the release of information creates a risk of indirectly identifying individuals in the reports. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983) (identifying information is considered not only from

Robert E. Cutler, Jr. SPR19/0586 Page3 April 4, 2019 the viewpoint of the public, but also from the vantage of those who are familiar with the individual). Based on the Town's responses, I find the requested reports are sufficiently similar to the report in Wakefield to conclude it constitutes personnel information that identifies individuals. See Wakefield Teachers Ass'n, 431 Mass. 792. Consequently, because this report constitutes one of the core categories of personnel information determined to be exempt as personnel and the documents relate to an identified individual and could not be redacted in such a way to protect the identity of the individual, I find the Town acted properly in withholding the report. Sincerely, Rebecca S. Murray Supervisor of Records cc: Heather Harding