Samuel D. Obar v. Walpole, Town of - Town Clerk (SPR 20200318)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 4, 2020 SPR20/0318 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, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Obar requested: • "All text messages between [James Johnson] and Nancy Mackenzie between May 1, 2019 and January 1, 2020 • All text message and emails between [James Johnson] and Mark Gallivan and Jim O'Neil between May 1, 2019 and January 1, 2020 that relate to any issue involving Chris McKenzie; or relate to a proposed Selectmen recall election" • A log from your cell phone of all calls between you and Nancy Mackenzie between May 1, 2019 and January 1, 2020." Previous Appeal The requested records have been the subject of a prior appeal. See SPR20/0124 Determination of the Supervisor of Records (February 4, 2020). In my February 4th determination, I found that the Town had not met its burden to withhold responsive text messages under Exemption (f), and ordered the Town to provide a response to Mr. Obar consistent with that order, the Public Records Law, and its Regulations. The Town provided Mr. Obar with a response on February 18, 2020, providing a number of responsive text messages, and withholding two additional messages pursuant to Exemption (c). Unsatisfied with the Town's response, Mr. Obar petitioned this office and this appeal, SPR20/03 l 8, was opened as a result. 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 SPR20/0318 Page 2 March 4, 2020 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, § 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, § 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. Appeal In its February 18th response, the Town indicates that it is withholding two responsive text messages. One message is dated August 6, 2019 and is being withheld under the privacy clause of Exemption (c), and the other is dated August 27, 2019 and is being withheld under the personnel clause of Exemption (c). In his appeal petition, Mr. Obar argues that the Town "need[s ] to be more specific as to how messages of this nature would involve the 'reputational rights' of town officials." 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,

James Johnson . SPR20/0318 Page 3 March 4, 2020 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 (Prescott), 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 Prope1iy Dep't, 380 Mass. 623,625 (1980). Therefore, dete1minations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are frlctors 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, 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.

James Johnson SPR20/0318 Page 4 March 4, 2020 The Town's Response In its February 18th response, the Town states that it is withholding the August 6, 2019 message because it "specifically invokes the reputational rights of specifically identified Town officials under the second clause of exemption (c)." The Town additionally stated that it is withholding the August 27, 2019 message because it "specifically relates to personnel information regarding a specifically involved individual under the first and second clauses of exemption ( c) . " Based on the Town's response, I find it has not met its burden to withhold the responsive messages under the first and second clauses of Exemption (c). In particular, with respect to the personnel clause of Exemption ( c) , it is unclear how the responsive message constitutes one of the "core categories of personnel information" as contemplated in Wakefield. See Wakefield, 431 Mass. at 798. Additionally, with respect to the privacy clause, it is unclear how the responsive messages implicate "intimate details of a highly personal nature" as identified in PETA. See PETA, 477 Mass. at 292. The Town must clarify these matters. Based on the Town's statements, it appears that the privacy interests involved are held by Town officials. Please note that public officials have a diminished expectation of privacy with respect to matters involving their employment. See Prescott, 395 Mass. at 278. In PETA, the court identified a balancing test which weighs the public interest in disclosure of the information against the private interest in preventing disclosure. See PETA at 292. The Town must address this balancing test. In camera inspection In the alternative, in order to facilitate a determination as to the applicability of the Town's claims under Exemption (c) to withhold records from disclosure in their entirety, the Commission may provide this office with un-redacted copies of a representative sample of responsive records for in camera inspection. See 950 C.M.R. 32.08(4 ). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to

James Johnson SPR20/0318 Page 5 March 4, 2020 in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision, Co11clusio11 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. In the alternative, the Town may provide this office with an un-redacted copy of the responsive records for an in camera inspection. The Town may provide this office with an explanation of its position regarding the applicability of Exemption ( c ). Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~u~ Supervisor of Records cc: Samuel Obar Janelle Austin, Esq.