Susan Spencer v. Millbury, Town of - Public Schools (SPR 20191718)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 3, 2019 SPR19/1718 D. Moschos, Esq. Mirick, O'Connell, DeMallie & Lougee, LLP 100 Front Street Worcester, MA 01608-1477 Dear Attorney Moschos: I have received the petition of Susan Spencer, of the Telegram & Gazette, appealing the response of the Town of Millbury (Town) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Spencer requested a copy of: "the separation agreement or other documentation regarding the [T]own [M]anager David J. Marciello's cessation of his Town Manager duties including payment and severance amounts through the remainder of the fiscal year." On August 19, 2019, the Town provided Ms. Spencer with two documents, "the Town's Order on the Town Manager's powers and duties; and the Separation (Leave) Agreement." The August 19th response indicates that the certain information was withheld from the agreement under the first and second clauses of Exemption (c) and pursuant to Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). As a result of the redactions to the agreement, Ms. Spencer petitioned the Supervisor of Records (Supervisor) and this appeal was opened. Ms. Spencer seeks an un-redacted copy of the agreement. 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, § IOA(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. 6. 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, § IO(b)(iv) (written response must "identify 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

D. Moschos, Esq. SPR19/1718 Page 2 September 3, 2019 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 ... "); 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). Exemption (c) Exemption (c) applies to: 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 infornrntion 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 ofrecords that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. ~o. 11-01184-A (June 14, 2013). In the Globe decision, the Court listed infomrntion that is properly subject to redaction under the personnel clause of Exemption ( c ), such as: "promotion of grade; compensation at a different salary grade; adjustment in compensation; waiver of bumping rights and/or recall rights; entitlement to remain on administrative leave; requirement to tender a letter of resignation; demand of voluntary resignation; reinstatement; layoff; agreement by an agency to remove a letter from a personnel file; agreement by an agency concerning the providing of references and their contents; the requirement that an employee meet with a supervisor to review progress of assigned matters; adjustment of an agency's records to reflect an employee's status; adjustment or continuation of employee benefits, such as unemployment assistance, COBRA, and retirement benefits and agreement regarding back wages; recitations concerning grievances, including agreement to withdraw a grievance and acknowledgment by an employee of the absence of a pending grievance; a statement of

D. Moschos, Esq. SPR19/1718 Page 3 September 3, 2019 resolution of all claims concerning termination of employment and prior disciplinary actions; agreement to tum in agency property; globalresolution involving the entering of a 1iolle prosequi by a prosecutorial official; language affirming an agency's legitimate concern for discipline and an employee's receipt of a memorandum of verbal discipline; and completion by an employer of harassment training." Globe, 34-35. Second clause of (c) -privacy 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. T01Tes v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep 't, 3 80 Mass. 623, 625 ( 1980). Therefore, detenninations 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 infonnation 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. Burden ofs pecificity in claiming exe11iptions 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, § lO(b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In its August 19111 response, the Town did not meet its burden of specificity in claiming the personnel and privacy clauses of Exemption ( c) , and the finding in the Globe case to withhold records in their entirety. It is my understanding that you discussed this appeal with a

D. Moschos, Esq. SPR19/1718 Page4 September 3, 2019 Public Records Division attorney, and offered to provide an un-redacted copy of the agreement to this office for in camera inspection. In camera inspection In order to facilitate a determination as to the applicability of the Town's Exemption (c) claim to withhold certain of the information in the separation agreement, it is necessary to inspect an un-redacted copy of the separation agreement. See 950 C.M.R. 32.08(4 ). After I complete my review of the record, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) ( administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being. reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Conclusion Accordingly, the Town is ordered to provide this office with an un-redacted copy of the separation agreement without delay. The Town may provide this office with an explanation of its position regarding the applicability of Exemption ( c) to withhold portions of the record from disclosure. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Susan Spencer