Richard D. Bradley v. Falmouth, Town of - Town Clerk (SPR 20202251)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2020 SPR20/2251 Julian M. Suso Town Manager Town of Falmouth 59 Town Hall Square Falmouth, MA 02540 Dear Mr. Suso: I have received the petition of Richard Bradley appealing the response of the Town of Falmouth (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Bradley requested “the Town Managers Evaluation.” Previous Appeal This request has been the subject of a previous appeal. See SPR20/1803 Determination of the Supervisor of Records (October 8, 2020). In my October 8th determination, I found it was unclear whether the Town possessed additional responsive records beyond the Select Board minutes it had produced to Mr. Bradley. The Town responded on November 12, 2020, indicating that it possess an evaluation for the Town Manager, and is withholding this record pursuant to the personnel clause of Exemption (c). Unsatisfied with the Town’s response, Mr. Bradley petitioned this office and this appeal, SPR20/2251, 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. 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

Julian M. Suso SPR20/2251 Page 2 December 2, 2020 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. Current Appeal In its November 12, 2020 response, the Town indicates that it is withholding the responsive records pursuant to the personnel clause of Exemption (c) of the Public Records Law. 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).

Julian M. Suso SPR20/2251 Page 3 December 2, 2020 In its response, the Town explains that “The Town Manager's evaluation is conducted by the Select Board which is responsible for hiring and evaluating the Town Manager. The evaluation process begins with the distribution to each member of the Select Board of an evaluation form. The individual members of the Select Board fill out the evaluation form and forward it the chair of the board. The chair of the board compiles a summary of the individual member's evaluations in the form of numerical scores. Then at a public session of the Select Board, the chair announces the summary so compiled.” The Town further explains: “[a]s noted in the minutes, the chair announced the average of numerical scores and summarized input from the members. No documents' were introduced or read at the public session. It is also significant to note that individual members of the board do not and have not seen the evaluations prepared by other members of the board. The individual members of the board know only of the summary as revealed by the chair at the public session on March 9th.” The Town therefore asserts that “the materials previously forwarded to you, namely, the minutes of the March 9, 2020 meeting of the Select Board, are the proper and sufficient response to your public records request and any other materials relating to the Town Manager's evaluation are protected from public disclosure by Exemption (c) as noted above.” Open Meeting Law Given that this appeal is related to performance evaluations completed by members of a public body, this raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination under the Public Records Law at this time. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek determination on this issue. Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard Bradley