Samuel D. Obar v. Walpole, Town of - Town Clerk (SPR 20200539)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 30, 2020 SPR20/0539 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….” Previous appeals The requested record was the subject of previous appeals. See SPR20/0123 Determination of the Supervisor of Records (February 4, 2020) and SPR20/0316 Determination of the Supervisor of Records (March 2, 2020). In my March 2nd 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). I also directed the Town to identify the record in its possession and clarify whether it possesses a separation agreement. Subsequently, the Town responded on March 13, 2020, providing additional information regarding its Exemption (c) claim. Unsatisfied with the Town’s response, Mr. Obar petitioned this office and this appeal, SPR20/0539, 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). 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 SPR20/0539 Page 2 March 30, 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, § 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(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 March 13th response In its March 13, 2020 response, the Town asserts that it “. . . does not have any documents relative to the ‘termination’ of Christopher Mackenzie.” Rather, “[t]he Town has a document dated August 7, 2019 contained in Mr. Mackenzie’s personnel file which constitutes ‘core personnel information’ since the record includes the specific categories of information exempt from disclosure pursuant to the Superior Court’s order in Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013) . . .” Citing Exemption (c), Wakefield, and other case law, the Town continues to reiterate that based on its “. . . careful review of the determination, the underlying request and a review of the specifically identified personnel file at issue, the record being requested constitutes personnel information regarding a specifically identified individual known to Mr. Obar used to evaluate and make employment decisions and otherwise inform the Town when acting in its capacity as an employer.” As such, the Town contends that based on this review, “. . . it is clear that such records fall within the ‘core category’ of personnel information, as specified in the Globe decision, that is useful in making employment decisions regarding a particular employee. Accordingly, it is the Town’s position that such document constitutes ‘personnel information’ and are therefore exempt from disclosure pursuant to 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 constitute an unwarranted invasion of personal privacy G. L. c. 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

James Johnson SPR20/0539 Page 3 March 30, 2020 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. 11-01184-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). Although, the Town indicates that “. . . the record includes the specific categories of information exempt from disclosure pursuant to the Superior Court’s order in Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013) . . .[,]” it remains unclear how the record can be withheld in its entirety. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Town to withhold the record, in its entirety, the Town must provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Town’s 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. Mass. 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

James Johnson SPR20/0539 Page 4 March 30, 2020 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 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. Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Samuel Obar