Chris M. Grant v. Uxbridge, Town of - Town Clerk (SPR 20191237)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen•isor ofR ecords July!, 2019 SPR19/1237 Kelly Cote Town Clerk Town of Uxbridge 21 South Main Street Uxbridge, MA O1 569 Dear Ms. Cote: I have received the petition of Chris Grant appealing the response of the Town of Uxbridge (Town) to a request for public records. G. L. c. 66, § JOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Grant requested " ... the former employees exit interviews performed in 2018 and/or 2019 along with any reports related to them." The Town denied his request claiming the responsive records are exempt from disclosure under Exemptions (c ) and (e ) of the Public Records Law. G. L. c. 4, § 7(26)(c ), ( e ). 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, § 1O A( 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, § 1O (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 potiion 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. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Kelly Cote SPRJ9/1237 Page2 July I, 2019 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 ). First clause 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 persmmel 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). However, 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, ce1iain information that is considered personal in the ordinary sense of the word may be considered pmt of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). Courts have held that the term "personnel information" is neither rigid nor exact, and that determination should be made on a case by case basis. Wakefield Teachers Ass'n, 431 Mass. at 798. The Town is advised that the term "personnel file or information" in Exemption (c) derives its meaning from the nature or character of the document, not from its label or its repository. Worcester Telegram & Gazette Corp. 58 Mass. App. Ct. at 5. Therefore, a custodian's designation of materials as personnel file or information will not be dispositive to that point. Id. at 5-6. In its response, the Town indicates that " ... the document in question contains responses to interview questions from pmticular, named individuals, which include responses involving the reasons for their separation from service with the Town, and which the Town will use in the future to function effectively as an employer to learn from the experience of its employees. Thus,

Kelly Cote SPRI9/1237 Page 3 July 1, 2019 under the first clause of the 'Privacy Exemption', this document is exempt from disclosure. Fmther, disclosure of this information could have a 'chilling effect' on future participation in such exit interviews by employees who choose to leave the Town's employ, thereby stifling the Town's ability to grow as an employer." In Mr. Grant's petition for appeal, referring to the Wakefield case, he asse11s that" ... [a]s these are ex-employees, I feel this case law does not apply. As they are no longer employees of Uxbridge, there would be no 'employment decisions' to be made. Of course an assumption is made that there would be redaction done to hide any kind of employee personal information." Despite the Town's response, it remains unclear how the document constitutes one of the core categories of personnel information. See Wakefield, 431 Mass. at 798; Worcester, 58 Mass. App. Ct. at 5. Fmther, it is unce11ain whether the document would be "useful in making employment decisions regarding an employee." Id. Second clause Analysis under the second clause of Exemption (c ) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Tones v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Prope11y 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, 477 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. In its response, the Town indicates that" ... the employees were asked to share their detailed personal reflections, observations, assessments and motivations as to their decision to

Kelly Cote SPRI9/1237 Page4 July 1, 2019 leave the employ of the Town, which included both praise and criticism. The disclosure of this information could have negative repercussions to these employees in their current positions and ability to obtain future employment." The Town has not shown how the redacted potions would cause personal embarrassment to an individual of normal sensibilities; or how the redacted portions would reveal intimate details of a highly personal nature under Exemption (c). See PETA, 477 Mass. at 292. It is additionally unclear how the redacted pmiions are the type of information the second clause of Exemption (c ) is designed to protect. Id. Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption ( e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing repmis for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. In its response, the Town indicates that" ... the exit interview notes, which formed the basis of the summary are exempt from disclosure pursuant to M.G.L. c 4, § 7(26)(e) ... the notes in question were created by Attorney Feodoroff while conducting the exit interviews. These notes were not shared with any other employee and formed the basis of the summary repmi. Thus, they are exempt from disclosure." In Mr. Grant's petition for appeal, he asserts that "these interviews along with any reports were disseminated among the Uxbridge Board of Selectmen."

Kelly Cote SPR19/1237 Page 5 · July 1, 2019 In order for the Town to claim Exemption (e), they must meet the criteria described above. Although the Town indicates the notes were not shared, based on Mr. Grant's petition for appeal, whether the notes were shared is unclear. Therefore, the Town has not met its burden of withholding these records under Exemption ( e) . Co11clusio11 Given that the Town has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Town is ordered to review the records, redact where necessary, and provide Mr. Grant 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, Rebecca S. Murray Supervisor of Records cc: Clu·is Grant