James J. DeVellis v. Foxboro, Town of - Town Clerk (SPR 20190603)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 4, 2019 SPR19/0603 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. Previous appeal This request was the subject of previous appeals. See SPR18/2065 Determinations of the Supervisor of Records (January 7, 2019); SPR19/0062 Determination of the Supervisor of Records (January 25, 2019; March 4, 2019). This office closed SPR19/0062 with the determination that the Town provide Mr. DeVellis with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Town provided a response dated March 15, 2019 and Mr. DeVellis appealed. Current appeal The Town in its March 15th response explains that it is withholding documents because "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 [Mr. DeVellis]." Mr. DeVellis states in his March 21, 2019 appeal that "it seems only reasonable to think that there would be persons involved in that case who would also be able to identify others. That fact should not preclude the production of the rest of the report." Mr. DeVellis believes that the "public has a right to know how their municipal employees and elected officials are carrying out their duties and specifically as an official in charge of those individuals under our contract." 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. SPR19/0603 Page2 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 15th letter you explain to Mr. DeVellis "it would be impossible for the Town to provide [him] with any 'de-identified' information because [he is] aware of the individual to whom the information is related." You indicate in addition to Mr. DeVellis that as "a member of the Town's Board of Selectmen and a public official, [he has] been directly involved with the matters of the report(s) which [he is] seeking." You claim that by releasing this information it is "clear that [Mr. De Vellis would be] able to identify the individual to whom the redacted information pertains." 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 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.

Robert E. Cutler, Jr. SPR19/0603 Page 3 April 4, 2019 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: James J. DeVellis