Michael Killeen v. Deerfield, Town of - Town Administrator (SPR 20192529)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor ofR ecords January 8, 2020 SPR19/2529 Diana Schindler Acting Town Administrator Town of Deerfield 8 Conway Street South Deerfield, MA O1 3 73 Dear Ms. Schindler: I have received the petition of Michael Killeen appealing the response of the Town of Deerfield (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Killeen requested a "copy of the settlement agreement as indicated by the board on 1/23/19 in regards to [an identified individual]." Previous appeals; in camera i11spection This request was the subject of previous appeals and subsequent in camera inspection. See SPR19/0394 Determination of the Supervisor of Records (March 5, 2019); SPR19/0712 Determination of the Supervisor of Records (April 19, 2019); SPR19/1331 Determinations of the Supervisor of Records (July 17, 2019; August 13, 2019) and SPR19/1740 Determination of the Supervisor of Records (September 11, 2019). In my September 11th determination, I ordered the Town to provide Mr. Killeen with a response to the request, in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Town provided a response on September 25, 2019. Unsatisfied with the Town's response, Mr. Killeen petitioned this office and this appeal, SPR19/2529, 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). 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

Diana Schindler SPR19/2529 Page2 January 8, 2020 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion 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, § lO(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 September 251 response " In its September 25, 2019 response, the Town stated that the records were redacted pursuant to Exemption (c), and consistent with Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 ofExemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The comis 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).

Diana Schindler SPR19/2529 Page 3 January 8, 2020 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 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 September 25111 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." 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, 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.

Diana Schindler SPR19/2529 Page4 January 8, 2020 Under 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 exempt from disclosure. On that basis, ... the Town maintains that the redacted portions of this document are exempt from disclosure." Subsequent to the opening of this appeal, this was office was notified that the Town provided a supplemental response dated December 27, 2019, which included an updated version of the responsive document which had been previously redacted. Conclusion Accordingly, I will now consider this administrative appeal closed. Mr. Killeen may appeal the substantive nature of the Town's response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Killeen