Brian Keaney v. Dedham Town Admin (SPR 20201355)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 25, 2020 SPR20/1355 Lauren F. Goldberg, Esq. KP Law 101 Arch Street, 12th Floor Boston, MA 02110 Dear Attorney Goldberg: I have received the petition of Brian Keaney appealing the response of Town of Dedham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Keaney requested: 1. “The document(s) signed by the Library Trustees resigning their positions. 2. The complaints made by library staff that were referenced in the statements of the Trustees and Town Manager Goodwin in the front page article of the July 24th edition of the Dedham Times. 3. A copy of the investigation's findings referenced by Town Manager Goodwin in the same issue of the Times.” The Town provided a response on August 11, 2020, indicating that it is withholding responsive records pursuant to the personnel and privacy clauses of Exemption (c), as well as Exemption (f). Unsatisfied with this response, Mr. Keaney petitioned this office and this appeal, SPR20/1355, 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 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

Lauren F. Goldberg SPR20/1355 Page 2 August 25, 2020 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 August 11, 2020 response, the Town states that it is withholding complaints made by library staff and its investigative findings pursuant to the personnel and privacy clauses of Exemption (c) and Exemption (f). 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 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).

Lauren F. Goldberg SPR20/1355 Page 3 August 25, 2020 Pursuant to the personnel clause, the Town has withheld complaints made by library staff, as well as the “investigation findings” related to these complaints. The Town states that “[r]ecords reflecting Town personnel and staffing matters relate directly to the Town’s function as an employer and are precisely the type of ‘personnel’ files or information absolutely exempt from disclosure under the first clause of Exemption (c). The requested records fall squarely within the application of such exemption.” In his appeal petition, Mr. Keaney states that “Exemption C requires a balancing of interests between the public’s right to know and the privacy of the employee(s) in question,” and argues that there is significant public interest in this matter. Please note that Massachusetts courts have interpreted Exemption (c) to mean that “[i]nformation falling within the [personnel clause] is absolutely exempt from disclosure” and does not contemplate a balancing of competing interests. Wakefield, 431 Mass. at 799. Second clause of Exemption (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). 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.

Lauren F. Goldberg SPR20/1355 Page 4 August 25, 2020 Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Investigation Findings Based on the Town’s response, I find that the responsive investigative findings appear to be of the same kind as the record at issue in the Wakefield case. Where a record falls into one of the “core categories” of personnel files identified in Wakefield, it is exempt from disclosure. See Wakefield, 431 Mass at 798. Accordingly, I find the Town may permissibly withhold the investigative report under the personnel clause of Exemption (c). Staff Complaints I find the Town has not met its burden to withhold the requested staff complaints, in their entirety, pursuant to Exemptions (c) and (f). In particular, it is unclear how these complaints fall with the “core categories” of personnel records identified in Wakefield. While the Town’s response indicates that the complaints may contain information that may be redacted pursuant to the privacy clause of Exemption (c) and Exemption (f), it is unclear whether these exemptions permit withholding the records in their 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). The Town must clarify what information it intends to redact pursuant to these exemptions.

Lauren F. Goldberg SPR20/1355 Page 5 August 25, 2020 Conclusion Accordingly, the Department is ordered to provide Mr. Keaney with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Keaney