Daniel Nardo v. Hingham, Town of - Town Administrator (SPR 20201874)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2020 SPR20/1874 Tom Mayo Town Administrator Town of Hingham 210 Central Street Hingham, MA 02043 Dear Mr. Mayo: I have received the petition of Daniel J. Nardo appealing the response of the Town of Hingham (the Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Nardo requested several categories of records pertaining to Hingham Firefighters Local 23988, including “any and all contracts, agreements, reports, documents, and financial records concerning the Town of Hingham’s work with Ms. Regina Ryan and/or Discrimination and Harassment Solutions in relation to the Hingham Fire Department or Hingham Firefighters Local 2398 since January 1, 2020.” Previous Appeal This request has been the subject of a previous appeal. See SPR20/1541 Determination of the Supervisor of Records (September 16, 2020). In my September 16th determination, I found that the Town had not met its burden to withhold responsive records in their entirety. The Town responded to Mr. Nardo on September 30, 2020, providing additional responsive records, and withholding others pursuant to Exemption (c) of the Public Records Law. Unsatisfied with the Town’s response, Mr. Nardo petitioned this office and this appeal, SPR20/1541, was opened as a result. Current Appeal In its September 30th response, the Town claims the personnel clause of Exemption (c) of the Public Records Law to withhold a responsive report from disclosure. Exemption (c) Exemption (c) permits the withholding of: 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

Tom Mayo SPR20/1874 Page 2 October 19, 2020 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). In the Town’s September 30th response, the Town states that “[t]he report by Discrimination and Harassment Solutions, LLC has not been completed.” The Town further states that “[t]his type of report which involves a personnel matter has been determined by the Supreme Judicial Court of Massachusetts to be exempt from disclosure under the public records law (citing Wakefield).” In his October 1st email, Attorney Nardo asserts that the Town has not demonstrated that disclosure of the requested records “may constitute an unwarranted invasion of personal privacy.” The Supreme Judicial Court has held that with respect to Exemption (c), “the phrase ‘relating to a specifically named individual, the disclosure of which may constitute an

Tom Mayo SPR20/1874 Page 3 October 19, 2020 unwarranted invasion of personal privacy’ modifies only the second category” of records identified in the exemption. See Wakefield, 431 Mass. at 797. Based on the Town’s response, I find it has met its burden to show that the responsive report may be withheld pursuant to the personnel clause of Exemption (c). Where the record is one of the “core categories of personnel information” identified by the court in Wakefield, it is absolutely exempt from disclosure. See id. at 797-98, 803. Conclusion Accordingly, whereas I find the Town may permissibly withhold the responsive record under the personnel clause of Exemption (c), I will consider this administrative appeal closed. If Attorney Nardo 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: Daniel J. Nardo