Wheeler Cowperthwaite v. Hingham, Town of - Town Administrator (SPR 20202097)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2020 SPR20/2097 Thomas Mayo Town Administrator Town of Hingham 210 Central Street Hingham, MA 02043 Dear Mr. Mayo: I have received the petition of Wheeler Cowperthwaite of The Patriot Ledger appealing the response of the Town of Hingham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Cowperthwaite requested: “[a]ll contracts and agreements, including scope of work documentation, for private investigations since Jan. 1, 2020, including but not limited to Discrimination and Harassment Solutions, LLC; and, All invoices for private investigations since Jan. 1, 2020, including but not limited to those from Discrimination and Harassment Solutions, LLC; All reports in possession of the [T]own from all private investigations commissioned since Jan. 1, 2020, including but not limited to those from Discrimination and Harassment Solutions, LLC.” Prior appeal The requested records were the subject of a prior appeal by Mr. Cowperthwaite. See SPR20/1713 Determination of the Supervisor of Records (Supervisor) (September 30, 2020). In a September 15, 2020 response, the Town denied Mr. Cowperthwaite’s request in its entirety under Exemption (f) of the Public Records Law. In my September 30th determination, I determined that the Town did not meet its burden of demonstrating that the release of contracts, agreements and invoices will prejudice any current or future investigative techniques or investigative efforts of the Department under Exemption (f). Accordingly, the Town was ordered to review its contracts, agreements and invoices, redact where necessary and provide Mr. Cowperthwaite with these records within 10 business days. In an October 14, 2020 response, the Town provided a copy of the responsive agreement and invoice requested by Mr. Cowperthwaite on September 1, 2020. The Town has withheld the 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

Thomas Mayo SPR20/2097 Page 2 November 9, 2020 investigation report under the personnel clause of Exemption (c) of the Public Records Law. Mr. Cowperthwaite appealed the October 14th response, and the current appeal was opened. In his October 28, 2020 petition, Mr. Cowperthwaite asserts, “since [the Supervisor’s September 30th determination of SPR20/1713] I have become aware that the [T]own commissioned at least one more private investigation and provided records of that investigation to [a] [T]own resident, despite indicating to me that no such records existed.” 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) (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…”); 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). The Town’s October 30, 2020 response After this appeal was opened, the Town provided an October 30, 2020 response. In its October 30th response, the Town informed this office that, “the only private investigation commissioned by the Town was the one being conducted by Discrimination and Harassment Solutions, LLC. That investigation has since been completed and the Town has already responded to the above request by providing a copy of the agreement and invoice by letter dated October 14, 2020.” The Town also asserts, “[p]lease note that the final report was withheld under [G. L.] c. 4, § 7(26)(c) since this matter involved an investigation regarding a personnel matter within the [Town’s] Fire Department (See Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792 (2000)). The Town has already received a determination that the withholding of the report was permissible (See SPR20/1874).” The determination the Town refers to, SPR20/1874, pertains to the identical final report requested by another individual, and said report is also the subject of Mr. Cowperthwaite’s request and current appeal. See SPR20/1874 Determination of the Supervisor (October 19, 2020).

Thomas Mayo SPR20/2097 Page 3 November 9, 2020 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). Investigation report - personnel clause In the Town’s September 15th response to Mr. Cowperthwaite’s appeal, it stated, “…[t]he report by Discrimination and Harassment Solutions, LLC has not been completed.” The Town further states, “[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).”

Thomas Mayo SPR20/2097 Page 4 November 9, 2020 In its October 14, 2020 response to Mr. Cowperthwaite, the Town clarified that the Town conducted an investigation of a personnel matter, and at the time of the request the Town had not concluded the investigation; nor did it have a final report on the investigation. The Town claimed Exemption (f) due to the on-going investigation, and in addition, the Town claimed the first clause of Exemption (c) (the personnel clause). See SPR20/1713 Determination of the Supervisor (September 30, 2020). Mr. Cowperthwaite appealed the Town’s October 14th response, and SPR20/2097 was opened. In response to Mr. Cowperthwaite’s current appeal, the Town provided an October 30th response. Regarding the October 30th response pertaining to the investigation report, the Town states, “[t]hat investigation has since been completed…Please note that the final report was withheld under [G. L.] c. 4, § 7(26)(c) since the matter involved an investigation regarding a personnel matter within the [Town] (see Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792 (2000)). The Town has already received a determination that the withholding of the report was permissible (see SPR20/1874).” See SPR20/1874 Determination of the Supervisor (October 19, 2020). Based on the Town’s responses and my October 19th determination of SPR20/1874, I find the Town has met its burden to show that the responsive investigation 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. Additional investigation reports/records Mr. Cowperthwaite contends in his October 28th petition that the Town has at least one more investigation report and the report was provided to another resident of the Town, but not to him. Mr. Cowperthwaite is advised that he made his request on September 1, 2020 when the Town did not have possession of any completed and final investigation reports responsive to Mr. Cowperthwaite’s September 1st request. In the Town’s October 30th response it explains, “[i]n his appeal, Mr. Cowperthwaite also indicated that he is seeking further documents involving a different investigation which commenced after the date of his initial public records request.” Under the Public Records Law, a custodian is not required to honor a prospective request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In your October 30th response to this appeal, you also state, “[t]he Town will provide those records upon a receipt of a request for those documents. The Town reserves the right to withhold and/or redact any records that qualify for an exemption from the public records law

Thomas Mayo SPR20/2097 Page 5 November 9, 2020 under [G. L.] c. 4, § 7(26) (including but not limited to the attorney client/work product privilege).” Mr. Cowperthwaite is advised that if he seeks the records of a newly completed investigation, he should make a new request to the Town. Conclusion Accordingly, where the Town provided Mr. Cowperthwaite with the responsive agreement and invoice that I ordered the Town to provide in my September 30th determination, and that I found in a previous appeal that the Town met its burden to withhold the investigation report under the personnel clause of Exemption (c), I consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Wheeler Cowperthwaite, The Patriot Ledger