Colman Herman v. Deerfield, Town of - Town Administrator (SPR 20192212)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records November 15, 2019 SPR19/2212 Diana Schindler Interim Town Administrator Town of Deerfield . 8 Conway Street South Deerfield, MA O 13 73 Dear Ms. Schindler: I have received the petition of Colman Herman appealing the response of the Town of Deerfield's Town Administrator (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested "a copy of the Memorandum of Agreement and Release of Claims executed between the Town of Deerfield and Kyle Scott." The Town provided responses on October 17, 2019 and October 25, 2019. Mr. Herman appealed and SPR19/2212 was opened as a result. This request is similar to the subject of previous appeals filed by Michael Killeen. See SPR19/394 Determination of the Supervisor of Records (March 5, 2019); SPR19/712 Determination of the Supervisor of Records (April 19, 2019); SPR19/1331 Determinations of the Supervisor of Records (July 17, 2019; August 13, 2019); SPRl 9/17 40 Determination of the Supervisor of Records (September 11, 2019). 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 One Ashbu1ion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Diana Schindler SPR19/2212 Page 2 November 15, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. G. L. c. 66, § lO(b)(iv). Current appeal I understand that on October 17th the Town provided Mr. Herman a response addressed to Mr. Killeen and subsequently provided a separate response to Mr. Herman on October 25th. The Town provided the responsive record with portions redacted under both clauses of Exemption (c). Mr. Herman informed this office that he believes the Town's claims under both clauses of Exemption ( c) lack the required specificity under the Public Records Law. Exemption (c) Exemption ( c) permits the withholding of: personnel an,d 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 ofE xemption (c) - personnel 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 ~ork evaluations, disciplinary documentation, and promotion, demotion, or termination information pe1iaining 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). 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 Publ'g Co. v. Register of Probate for Norfolk Cnty., 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

Diana Schindler SPR19/2212 Page 3 November 15, 2019 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). In its October 25th response the Town indicates that it "maintains that the redacted portions of this document are exempt from disclosure pursuant to both clauses of the 'Privacy Exemption,' M.G.L. c 4, § 7(26)(c) as analyzed under Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013), a copy of which is enclosed herewith. To specifically identify which of the categories of documents listed on page 34 of that decision would apply to each redacted portion of the agreement would defeat the purpose of claiming those exemptions." (emphasis in original). Second clause ofE xemption (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. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property 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. With respect to the second clause of Exemption (c), the Town asserts "[h]ere, you have requested a document regarding a specifically identified individual regarding 'intimate details of a highly personal nature', namely having to do with specific employment matters relative to this individual, thus the redacted portions of this document are exeinpt from disclosure. On that basis, and based on the Town's previous responses to another requestor claiming protection under both clauses of the privacy exemption, the Town maintains that the redacted portions of this document are exempt from disclosure."

Diana Schindler SPR19/2212 Page 4 November 15, 2019 In camera inspection I understand that subsequent to my August 13th and September 11th .determinations referenced above, the Town provided a less-redacted version of the record to Mr. Killeen. The Town provided this less-redacted record to Mr. Herman. I find that in order to facilitate a determination as to the applicability of Exemption ( c) to the remaining redactions, I must conduct an in camera review of the record. 950 C.M.R. 32.08(4). Conclusion It is my understanding that the Town previously provided this office with an unredacted copy of the record at issue for in camera inspection. This office will issue a determination in a manner consistent with the timeframes set out in SPR Bulletin 04-17. See https://www.sec.state . . ma. us/pre/prepra/significant-interest/SPR-Bulletin-04-17-Timeframes-for-Reconsiderations-and- . In-Camera-Reviews.htm). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman