Michael Saccone v. Pembroke, Town of - Town Administrator (SPR 20213118)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 9, 2021 SPR21/3118 William Chenard Town Manager Town of Pembroke 100 Center Street, Room 10 Pembroke, MA 02359 Dear Mr. Chenard: I have received the petition of Michael Saccone appealing the response of the Town of Pembroke (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 9, 2021, Mr. Saccone requested, among other items: [1] Any and all communications (emails, letters, etc.) from October 1, 2021 to present between [a named individual] and the Town of Pembroke pertaining to [the individual’s] employment status [2] [The individual’s] time cards, pay stubs, time off requests, etc. from October 1, 2021 to present [3] Any and all complaints or concerns received by the Town of Pembroke between January 1, 2021 to present pertaining to [the named individual]. The Town responded on November 15, 2021, providing numerous records responsive to item 2 and withholding records responsive to items 1 and 3. Unsatisfied with the Town’s response, Mr. Saccone appealed, and this case 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

William Chenard SPR21/3118 Page 2 December 9, 2021 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. Att’y 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Saccone contends that “neither [item 1 nor 2] would be exempt under [Exemption] (c).” He further contends that “the town also states, ‘the matter is under review and has not yet been concluded.’ The ‘matter’ in which the town is referring to is unclear.” The Town’s November 15th Response In its November 15, 2021 response, the Town states that it “has determined that there are documents that fall within requests number 1 and 3. Those documents are being withheld in their entirety” based on Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). 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).

William Chenard SPR21/3118 Page 3 December 9, 2021 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. 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 their duties in a law abiding and efficient manner. Id. at 292. Under Exemption (c), the Town argues the following: With respect to personnel documentation that may be responsive to [the] requests, the courts have in the past determined that personnel documentation included in internal affairs investigation materials are “absolutely exempt from disclosure,” as non-disclosure protects “the government’s ability to function effectively as an employer.” [Wakefield Teachers Ass’n, 431 Mass. at 799, 802.] . . . The courts have consistently held that disciplinary documentation related to or resulting from internal affair investigation was exempt from disclosure under Exemption (c). The Town further argues that it “is also withholding production of the requested documentation on the basis that the matter is under review and has not yet been concluded.” Based on the Town’s response, it is unclear how the responsive records are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. 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. Further, it is uncertain how the records can be withheld in their entirety. The Town must clarify whether segregable portions of the responsive records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additionally, the Town must identify the specific records it intends to withhold.

William Chenard SPR21/3118 Page 4 December 9, 2021 As a result, I find that the Town did not satisfy its burden in withholding these records pursuant to Exemption (c). Conclusion Accordingly, the Town is ordered to provide Mr. Saccone with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Saccone