Samuel D. Obar v. Walpole, Town of - Town Clerk (SPR 20200123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

February 4, 2020 SPR20/0123 James Johnson Town Administrator . Town of Walpole 135 School Street Walpole, MA 02081

Dear Mr, Johnson:

I have received the petition of Samuel Obar appealing the response of the Town of Walpole (Town) to a request for public records. G, L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Obar requested a copy of “the agreement signed between the Board of Selectmen and Deputy Police Chief Christopher Mackenzie outlining the terms of his administrative leave....” The.Town provided Mr. Obar with a response on January 17, 2020, withholding responsive records. Unsatisfied with the Town’s response, Mr. Obar petitioned this office and this appeal, SPR 20/0123, was opened as a result.

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, § 10A(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, § 10(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.

Appeal In its January 17" response, the Town indicates that it is withholding the responsive

record pursuant to the personnel clause of Exemption (c).

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 * (@17) 727-2832 * Fax: (617) 727-5914 sec.state.ma.us/pre * pre@sec.state.ma.us

James Johnson ~ SPR20/0123 Page 2 February 4, 2020

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. ¢. 4, § 7(26)(c).

First clause of Exemption (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

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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 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).

In its January 17" response, the Town states that “the information being requested constitutes personnel information used to evaluate and make employment decisions and otherwise inform the Town when acting in its capacity as an employer.” The Town further atgues that “it is clear that such records fall within the ‘core category’ of personnel information that is useful in making employment decisions regarding a particular employee.”

Based on the Town’s response, I find that it has not met its burden to withhold the

James Johnson . SPR20/0123 Page 3 February 4, 2020

responsive agreement, in its entirety, pursuant to the personnel clause of Exemption (c). In particular, it is unclear how this document correlates to one of the “core categories” of personnel records discussed in Wakefield. See 431 Mass. at 798. The Town must clarify this matter. Additionally, please note that the issue of whether separation agreements are public records was decided in a 2013 Superior Court decision in Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No, 11-01184-A (June 14, 2013), In Globe, the Superior Court affirmed the presumption that separation, severance, transition or settlement agreements are public records, subject to redaction. Id., at 34-35. :

-T understand that a staff member of the Public Records Division attempted to contact you regarding this appeal but was unable to reach you prior to the issuance of this decision.

Conclusion

Accordingly, the Town is ordered to provide a response to Mr. Obar, 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,

Rebecca S. Murray Supervisor of Records ce: Samuel Obar