Samuel D. Obar v. Walpole, Town of - Town Clerk (SPR 20200316)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11per11/sor ofR ecordv March 2, 2020 SPR20/0316 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, § IOA; 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 ...." Previous appeal The requested record was the subject of a previous appeal. See SPR20/0123 Determination of the Supervisor of Records (February 4, 2020). In my February 4°1 determination, I found the Town had not met its burden to withhold the responsive record, in its entirety, under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Subsequently, the Town responded on February 14, 2020, providing additional information regarding its Exemption (c) claim. Unsatisfied with the Town's response, Mr. Obar petitioned this office and this appeal, SPR20/0316, 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, § IOA(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 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

James Johnson SPR20/0316 Page 2 March 2, 2020 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, § 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 February 14111 response In its February 14, 2020 response, the Town claims that it does" ... not have records regarding 'termination' of former Deputy Police Chief Christopher Mackenzie, as specified in your request. With respect to the additional personnel record you are seeking regarding the terms of a former employee's administrative leave during his employment with the Town, this document is a personnel record contained in the former Employee's personnel file, which is exempt from disclosure under Exemption (c)." Citing Wakefield, the Town asserts that "[a]fter further careful review of the request, the requested personnel record and the underlying Division determination, the Town maintains that the SJC has characterized personnel records as 'absolutely exempt from disclosure.' Id. at 799, 802 .... " The Town further states that "[i]t is noteworthy that the SJ C's application of the first clause of Exemption ( c) as shielding personnel records and information from public disclosure protects 'the government's ability to function effectively as an employer.' Accordingly, the personnel record at issue, which reflects personnel and staffing matters involving the Police Department, relate directly to the Town's function as an employer and is precisely the type of 'personnel' files or information absolutely exempt from disclosure under the first clause of Exemption (c)." The Town further asserts that based on its review, "there is no ability for the Town to redact this record given that it pertains to a specific individual of which you identify and are aware of. Lastly, ... the Town has not received any authorization from Mr. Mackenzie to provide a copy of this record contained in his personnel file to a third-party, and as such, the record is not subject to disclosure and could constitute an invasion of his privacy pursuant to G.L. c. 214, § lB. Therefore, the personnel record is protected from disclosure as a confidential personnel record under Exemption (c)." 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 con$titute an unwarranted invasion of personal privacy

James Johnson SPR20/0316 Page 3 March 2, 2020 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 indivic;lual 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 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). 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).

James Johnson SPR20/0316 Page 4 March 2, 2020 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. Although the Town claims it does not possess records regarding the "termination" of the identified individual, it remains unclear what the withheld record in the Town's possession is that is responsive to Mr. Obar's request. The Town is advised that to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Consequently, the Town must identify any record(s) it intends to withhold under the claimed exemption. Further, despite the Town's claims, it is uncertain how the withheld record constitutes one of the "core categories of personnel information," such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under Exemption (c). See Worcester, 58 Mass. App. Ct. at 5; Wakefield, 431 Mass. at 798. The Town is also advised that the term "personnel file or information" in Exemption (c) derives its meaning from the nature or character of the document, not from its label or its repository. Worcester, 58 Mass. App. Ct. at 5. Therefore, a custodian's designation of materials as personnel file or information will not be dispositive to that point. Id. at 5-6. In his appeal petition, Mr. Obar states" ... the Town continues to claim that it does not have records regarding the 'termination' of Christopher Mackenzie. The Public Records Law requires that the records custodian must use their superior knowledge of records to provide a response; in this case it should be clear that while the Town of Walpole did not technically 'terminate' Christopher Mackenzie, as commonly defined, his separation from town employment was orchestrated in an agreement signed by the Board of Selectmen; and for the Town of Walpole to claim that they have no records related to that simply because I used the word 'termination' in my request, is disingenuous at best and intentionally dishonest at worst." In light of the above, I find the Town must clarify if it possesses a separation agreement between it and the identified individual. As noted in my February 4th determination, the issue of whether separation agreements are public records was decided in a 2013 St1perior Court decision in Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). In the Globe decision, the Superior Court affirmed the presumption that

James Johnson SPR20/0316 Page 5 March 2, 2020 separation, severance, transition or settlement agreements are public records, subject to redaction. Id., at 34-35. See SPR20/0123. Conclusion Accordingly, the Town is ordered to provide Mr. Obar 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, ~ r r ~ Supervisor of Records cc: Samuel Obar