Nancy Brown v. Concord, Town of - Town Clerk (SPR 20213109)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 13, 2021 SPR21/3109 Stephen Crane Town Manager Town of Concord P.O. Box 535 Concord, MA 01742 Dear Mr. Crane: I have received the petition of Nancy Brown, of the League of Women Voters of Concord & Carlisle Diversity, Equity and Inclusion Committee, appealing the response of the Town of Concord (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 27, 2021, Ms. Brown requested: “[t]he Report of EHW Consulting that pre- dated the Executive Summary document of July 7, 2021, including earlier drafts of the full document.” Previous appeal The requested records were the subject of a previous appeal. See SPR21/2562 Determination of the Supervisor of Records (October 19, 2021). The Town responded on November 2, 2021. Unsatisfied with the response, Ms. Brown petitioned this office and this appeal, SPR21/3109, 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(d)(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 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

Stephen Crane SPR21/3109 Page 2 December 13, 2021 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 November 2nd response In its November 2nd response, the Town cited Exemption (c) and (d) of the Public Records Law to withhold and/or redact 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. at 291. The public has a recognized interest in knowing whether public servants are carrying out

Stephen Crane SPR21/3109 Page 3 December 13, 2021 their duties in a law abiding and efficient manner. Id. at 292. In its response, the Town asserted, “[t]he Executive Summary document that you were provided contains all of the information … except for the information that is exempt … pursuant to Exemption (c)… the members of the senior leadership team were assured by the DEI consultant that the study was a ‘safe space’ for them to provide their comments and that such information would be kept confidential.” The Town further asserted, “[i]t would be a violation of these individuals’ right to privacy to release their comments.” Based on the Town’s response, it is unclear how the Executive Summary document is comprised of intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Town did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven

Stephen Crane SPR21/3109 Page 4 December 13, 2021 with opinions or analysis leading to opinions. Id. In its response, the Town states, “[t]he study conducted by the DEI consultant, and the resulting Executive Summary, are not ‘factual studies or reports.’ It is based on subjective information, including personal feelings and opinions of the senior leadership group. The purpose of the DEI study is to assist the Town in developing policies … This will be an ongoing process for the Town as it strives to grow and evolve in the areas on diversity, equity and inclusion.” The Town has not explained how the disclosure of the study is inter-agency or intra- agency and would taint the deliberative process. As a result, the Town has not sufficiently explained how the records are exempt from disclosure in their entirety pursuant to Exemption (d). As a result, I find that the Town has not met its burden to withhold the requested records under Exemptions (c) and (d) of the Public Records Law. Conclusion Accordingly, the Town is ordered to provide Ms. Brown with a response to her 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. Ms. Brown 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: Nancy Brown