William Cormier v. Abington Town Manager (SPR 20201251)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 5, 2020 SPR20/1251 Leanne M. Adams Town Clerk Town of Abington 500 Gliniewicz Way Abington, MA 02351 Dear Ms. Adams: I have received the petition of William Cormier, Jr. appealing the response of the Town of Abington (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 14, 2020, Mr. Cormier appealed the redactions of “police management study … released on 7/13/2020 at the board of selectman meeting …” Unsatisfied with the response, Mr. Cormier appealed and SPR20/1251 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. The Town’s July 23, 2020 Response In its July 23rd response the Town denied access to responsive records under Exemption (c) of the Public Records Law. 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

Leanne M. Adams SPR20/1251 Page 2 August 5, 2020 Exemption (c) Exemption (c) applies to: 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 - 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, 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 July 23rd response, the Town states, “… portions of the responsive records are part of a department analysis involving the performance of multiple Town employees and thus such record is personnel ... information within the meaning of G. L. c. 4, § 7(26)(c) and therefore is exempt from disclosure under the public records law.”

Leanne M. Adams SPR20/1251 Page 3 August 5, 2020 Burden of specificity; segregable portions Under the Public Records Law, the burden shall be on the custodian to cite with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); -Se-e -al-so- -D-is-t.- A--tto-r-n-ey- for the Norfolk Dist. V. Flatley, 419 Mass. 507, 511 (1995). (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police ------------------------- Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. 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). The Town’s July 23rd response did not contain the specificity required in a denial of access to public records. Instead, the Town's response simply cites Exemption (c), personnel information, without any further explanation as to the exemption's applicability to the requested records. The Town has not defined the type of personnel information redacted. In the Worcester case, the Court set out core categories of personnel information “that are ‘useful in making employment decisions regarding an employee’ including: employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. at 1, 5. It is unclear how the requested records fall under one of these categories. I find that the Town's July 23rd response did not meet its burden of specificity in withholding the requested records. Conclusion Accordingly, the Town is ordered to review the request and provide a response to Mr. Cormier made in accordance with the Public Records Law, its Access Regulations and this order as soon as is practicable. 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.

Leanne M. Adams SPR20/1251 Page 4 August 5, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc William C. Cormier, Jr.