Scott Westcott v. Uxbridge, Town of - Police Department (SPR 20190794)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 1, 2019 SPR19/0794 Chief Marc Montminy Town of Uxbridge -Police Department 275 Douglas Street Uxbridge, MA 01569 Dear Chief Montminy: I have received the petition of Scott A. Westcott, Esq. appealing the response of the Town of Uxbridge - Police Department (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Wescott's client requested an identified employee's "application packet" and "personnel file." The Town denied his request claiming to not possess the "application packet" and withholding the "personnel file" pursuant to Exemption (c) of Public Records Law. G. L. c. 4, § 7(26)(c). 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 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive 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

Chief Marc Montminy SPR19/0794 Page 2 May 1, 2019 Public records; 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 v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). With respect to the "application packet" request, in the Town's response, it indicates that "the Town is not in possession of the requested files." However, the Town also inditates in its response that it "utilized an external third party search firm who maintains the applications of all candidates." Consequently, it is unclear how the requested records are not in the Town's custody or control. Further, 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. See Fifty-one Hispanic Residents of Chelsea v. School Comm. 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). In light of the above information where the Town recognizes that it "utilized an external third party search firm who maintains the applications of all candidates," it is unclear how an agency relationship does not exist between the Town and the third party firm. See id. Thus, the Town's response does not explain how it cannot produce responsive records. Exemption (c); specificity 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). 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 Marc Montminy SPR19/0794 Page 3 May 1, 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 Publishing Co. v. Register of Probate for Norfolk County, 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). With respect to the "personnel file" request, the Town lists Exemption (c) and provides a description of the exemption. The Town is advised that in responding to public records requests, the records access officer (RAO) 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 950 C.M.R. 32.06(3). The burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. RAOs must meet their burden of demonstrating how redacted information is exempt from disclosure. 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). The Town's response did not contain the specificity required in a denial of access to public records. Instead, the Town's response merely cites Exemption (c) without any further explanation as to the exemption's specific applicability to the responsive records. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Town has not satisfied its burden in responding to this records request. The Town is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Conclusion Accordingly, the Town is ordered to provide Attorney Westcott with a response to the request, 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.

Chief Marc Montminy SPR19/0794 Page 4 May 1, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Scott A. Westcott, Esq.