Robert J. Disario v. Brookline, Town of - Town Clerk (SPR 20210873)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 21, 2021 SPR21/0873 Christopher Tisbert Record Access Officer Town of Brookline Town Hall 333 Washington Street, Room 104 Brookline, MA 02445 Dear Mr. Tisbert: I have received the petition of Robert J. Disario appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 16, 2021, Mr. Disario requested the following records: “1. A copy of the recent investigative report completed by [named] Human Resources Director … into allegations made against [named] Brookline Police Lieutenant and [named] Police Sergeant launched in December, 2020. 2. All relevant documents pertaining to [named] Director investigation with regard to the incident on October 3, 2020, including notes, interviews, findings and conclusions. 3. The original complaint filed by [named] Officer (complainant) with regard to the incident on October 3rd.” The Town responded on April 1, 2021. Unsatisfied with the response, Mr. Disario appealed and SPR21/0873 was opened as 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Christopher Tisbert SPR21/0873 Page 2 April 21, 2021 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 April 1st response In its April 1st response, the Town cited Exemption (c) of the Public Records Law to withhold the requested records. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). 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 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 Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Analysis under 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. 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). When analyzing a privacy claim, there is 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.

Christopher Tisbert SPR21/0873 Page 3 April 21, 2021 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. In its response, the Town states, “[t]he information you requested constitutes the core categories of personnel information useful in making employment decisions and are therefore exempt from disclosure pursuant to exemption (c) of the public records law. See Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792 (2000).” Based on the Town’s response it is unclear what records it is withholding under Exemption (c) and how each of the records constitute “core categories of personnel information” that are “useful in making employment decisions.” See Worcester, 58 Mass. App. Ct. at 5. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify what type of record(s) it has in its possession that it withheld from disclosure. Additionally, given the update to the language of Exemption (c) which prohibits its application to records related to a law enforcement misconduct investigation, it is uncertain how this exemption may be used to withhold these records. As a result, I find that the Town has not met its burden to withhold the requested records under Exemption (c). Conclusion Accordingly, the Town is ordered to provide Mr. Disario with a response to his request in a manner consistent with the Public Records Law and its Access Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Disario may appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert J. Disario