Jim Haddadin v. Hingham, Town of - Town Administrator (SPR 20192316)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records . December 2, 2019 SPR19/2316 Thomas Mayo Town Administrator Town of Hingham 210 Central Street Hingham, MA 02043 Dear Thomas Mayo: I have received the petition of Jim Haddadin on behalf of Ryan Kath, both of NBC 10 Boston, appealing the response of the City of Hingham(Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 30, 2019, Mr. Kath requested "a copy of the 'agreement' signed between the Town and former Town Engineer Roger Fernandes." Previous appeal The requested record was the subject of a previous appeal. See SRP 19/2171 Determinationofthe Supervisor of Records (November 5, 2019). In my November 5th determination, I ordered the Town to provide Mr. Kath with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Town responded on November 7, 2019, indicating the record is being withheld because it is a personnel record. Unsatisfied with the Town's response, Mr. Haddadin petitioned this office and this appeal, SPRl 9/2316, was opened as a result. Tlte 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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Thomas Mayo SPRl 9/2316 Page 2 December 2, 2019 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 pmiion 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. The Town's November 7'11 response In its November 7, 2019 response, the Town states that it is " ... not releasing the agreement- [the Town] view[s] it as a personnel document that is exempt from disclosure. There was no payment made to the employee as paii of the agreement." 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 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 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). 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

Thomas Mayo SPR19/2316 Page 3 December 2, 2019 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). The Town's response did not contain the specificity required in a denial of access to public records. Instead, the Town's response. merely states that it is withholding the record from disclosure, because it". .. views it as a personnel document. .." without any fmiher explanation as to how the requested record is exempt from disclosure. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested record. As a result, I find the Town did not meet its burden of demonstrating how the requested record is exempt from disclosure. Further, although the Town claims jt believes the record is a personnel document and therefore exempt, it does not cite any exemption under the Public Records Law to justify its withholding. If the Town maintains the record is exempt from public disclosure, it must cite specific exemptions and the reasons the exemptions apply to withhold the responsive record. Consequently, I find the Town did not meet its burden of explaining with specificity how the record, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Conclusion Accordingly, the Town is ordered to provide Mr. Haddadin with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Sincerely, ~ I T ~ Supervisor of Records cc: Jim Haddadin