Robert Jackson v. Tyngsborough, Town of (SPR 20210979)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2021 SPR21/0979 Matthew J. Hanson Town Administrator Town Hall 25 Bryants Lane Tyngsborough, MA 01879 Dear Mr. Hanson: I have received the petition of Robert Jackson appealing the response of the Town of Tyngsborough (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Jackson requested “copies of the investigation into the Town of Tyngsborough Animal Control Officer (ACO)…including, but not limited to, all social media posts, written materials, files, attachments and any other information provided by the Tyngsborough Police Department or any other Town Office’s or Officials of Tyngsborough or any other sources that were used for the Executive Session hearing by the Town of Tyngsborough and the Selectmen and Town Administration on October 29th, 2020 as well as any other hearings that were held or other information that was collected pertaining to the issue of the ACO making inappropriate public social media posts.” Previous Appeals; in camera inspection This request was the subject of previous appeals and a subsequent in camera inspection. See SPR20/2315 Determination of the Supervisor of Records (December 9, 2020); SPR21/0156 Determination of the Supervisor of Records (February 5, 2021); SPR21/0156 Determination of the Supervisor of Records (March 5, 2021); and SPR21/0704 Determination of the Supervisor of Records (April 5, 2021). In my April 5th determination, I found the Town had not met its burden to withhold the requested records in their entirety under Exemption (c). I ordered the Town to review the request, redact the responsive record where appropriate and provide a response to Mr. Jackson in accordance with the Public Records Law and its Regulations. The Town provided said response on April 15, 2021. Unsatisfied with the Town’s response, Mr. Jackson petitioned this office and SPR21/0979 was opened as a result. 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

Deputy Chief Shaun Woods SPR21/0979 Page 2 May 3, 2021 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Town’s April 15th response In its April 15, 2021 response, the Town indicates “[i]n response to the determination from the Supervisor of Records, I have attached an unredacted copy of the Deputy Chief’s Internal Affairs Report, including all exhibits. The Police Chiefs’ disciplinary recommendation to the Board of Selectmen is being withheld in full as a protected personnel record.” 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). 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y 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. 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.

Deputy Chief Shaun Woods SPR21/0979 Page 3 May 3, 2021 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). This exemption 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 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 exemption 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. Based on its response, I find the Town has not met its burden to withhold the requested record in its entirety under Exemption (c). Specifically, the Town’s response fails to address the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 292. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Town must clarify this matter. Order Accordingly, the Town is ordered to provide Mr. Jackson with a response in accordance with this order, the Public Records Law and its Regulations within ten (10) business days. 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.

Deputy Chief Shaun Woods SPR21/0979 Page 4 May 3, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert Jackson Robert Mills, The Lowell Sun Timothy Zessin, Esq., KP Law Deputy Chief Shaun M. Woods