Samuel D. Obar v. Walpole, Town of - Town Clerk (SPR 20200835)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 8, 2020 SPR20/0835 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; in camera review The requested record was the subject of previous appeals and a subsequent in camera inspection. See SPR20/0123 Determination of the Supervisor of Records (February 4, 2020); SPR20/0316 Determination of the Supervisor of Records (March 2, 2020) and SPR20/0539 Determinations of the Supervisor of Records (March 30, 2020; May 1, 2020). In my May 1st determination, I found the Town had not met its burden to withhold the separation agreement, in its entirety, under Exemption (c). Subsequently, on May 22, 2020, the Town provided a redacted version of the responsive record. Objecting to the redactions, Mr. Obar petitioned this office and this appeal, SPR20/0835 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 SPR20/0835 Page 2 June 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, § 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. The Town’s May 22nd response In its May 22, 2020 response, the Town enclosed a redacted version of the separation agreement. In a previous March 13th response, the Town asserted that the withheld document “. . . contained in Mr. Mackenzie’s personnel file[,] . . . 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 indicated 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 contended 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.” 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 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

James Johnson SPR20/0835 Page 3 June 8, 2020 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). Based on the in camera review of the responsive record, coupled with the production of the record in redacted form, I find the Town has met its burden to justify the redactions under the personnel clause of Exemption (c) and the Globe decision. See Globe, at 34-35 (affirming the presumption that separation, severance, transition or settlement agreements are public records, subject to redaction.). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Obar is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Samuel Obar