Kim Mongeau v. Ware, Town of - Town Manager (SPR 20192390)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 12, 2019 SPR19/2390 Stuart Beckley Ware Town Manager 126 Main Street Ware, MA 01082 Dear Mr. Beckley: I have received the petition of Kim Mongeau appealing the response of the Town of . Ware (Town) to a request for public records. G. L. c. 66, § IOA; also 950 C.M.R. 32.08(1). Specifically, Ms. Mongeau requested a copy of "[t]he report generated Daigle Law Group in the investigation of Fire Chief Thomas Coulombe." The Town provided Ms. Mongeau with a response on November 21, 2019, withholding responsive records. Unsatisfied with the Town's response, Ms. Mongeau petitioned this office and this appeal, SPR 19/2390, 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 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. Appeal In its November 21st response, the Town indicates that it is withholding the responsive report pursuant to the personnel clause of Exemption ( c ). 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

Stuart Beckley SPR19/2390 Page 2 December 12, 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 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. 11-0i 184-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 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 ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). In its November 21st response, the Town states that "[t]his investigative rep01i involved a complaint of alleged wrongdoing by two employees of the Town and its purpose was to determine whether any workplace rules or expectations had been violated and, if so, make employment determinations based on it." The Town continues: "[t]he Supreme Judicial Court in [Wakefield] held that an investigative report into a teacher's alleged workplace misconduct constituted a disciplinary report that was a personnel file subject to the exemption. The sought after rep01i in the instant matter is directly analogous to this report and exempt for this reason."

Stuart Beckley SPR19/2390 Page 3 December 12, 2019 After a review of the Town's response, it is unclear whether Ms. Mongeau's appeal is related to the release of records used in an open meeting. Given that this appeal raises issues that potentially invoke the Open Meeting Law (OML) and that an interpretation of the OML falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the responsive records at this time. See G. L. c. 30A, § 23. It is recommended that you contact the Division of Open Government within the .Office of the Attorney General should you seek a determination on this issue. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kim Mongeau