Michael Saccone v. Pembroke, Town of - Town Administrator (SPR 20220067)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 25, 2022 SPR22/0067 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]. Previous Appeal This request was the subject of a previous appeal. See SPR21/3118 Supervisor of Records Determination (December 9, 2021). In my December 9th determination, I ordered the Town to clarify information in its response, and to identify the records it intends to withhold. Subsequently, the Town responded on December 23, 2021. 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 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 SPR22/0067 Page 2 January 25, 2022 municipality 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. 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 questions the Town’s claim that it does not possess records responsive to Item 1. With regard to Item 2, he argues that “citing an ongoing personnel matter, without providing an explanation of how releasing that complaint will impede the alleged ongoing personnel matter, is not sufficient enough reasoning to keep the document from being released.” Additionally, in an email to this office on January 11, 2022, Mr. Saccone notes that the individual named in his request “is retired and no longer a Town of Pembroke employee.” The Town’s December 23rd Response In its December 23, 2021 response, regarding Item 3 of the request, the Town states that “the Town is withholding two records: one complaint and a report provided to the Town related to an ongoing personnel matter, which has not been resolved at this juncture.” The Town cites Exemptions (c) and (d) of the Public Records Law for withholding the responsive records. See G. L. c. 4, § 7(26)(c), (d). 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).

William Chenard SPR22/0067 Page 3 January 25, 2022 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). 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 their duties in a law abiding and efficient manner. Id. at 292. The Town states that “records in response to Item 3 sought in this request submitted by individuals to the Town pertaining to the underlying ongoing personnel matter are also being withheld pursuant to Exemption (c).” The Town argues the following: After a careful individualized review of the two records responsive to Item 3, redaction is not possible, as the identity of the individual to whom these records pertain is known to the requestor. . . . The Town has carefully considered the information requested in light of Exemption (c), and considered the factors set forth in the PETA case. . . . After this careful, individualized review, the Town has determined that such records, which contain ongoing and unresolved personnel matters involving Town employees, will be withheld at this time pursuant to exemption (c) to protect their reputational interests and redaction is not possible to shield the identities of the Town employees and officials involved in this ongoing review, as the identity is known to [Mr. Saccone]. Based on information provided with Mr. Saccone’s appeal, where the individual involved is apparently no longer employed by the Town, it is unclear how the individual could be involved in “ongoing and unresolved personnel matters.” Further, the Town has not demonstrated that the public interest in knowing whether public employees carried out their duties in a law abiding and efficient manner is outweighed by any privacy interest involved in

William Chenard SPR22/0067 Page 4 January 25, 2022 this case. See PETA, 477 Mass. at 292. As a result, I find the Town has not met its burden to withhold the records responsive to Item 3 pursuant to Exemption (c) of the Public Records Law. 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). Under Exemption (d), the Town argues that “the records requested in Item 3 referenced above, are being withheld at this time pursuant to Exemption (d) since . . . this relates to an ongoing matter currently under review at this time.” As noted above, where the individual involved in these records appears to be no longer employed by the Town, it is unclear how any deliberative process could remain ongoing. Accordingly, I find that the Town has not satisfied its burden in withholding records responsive to Item 3 of the request, pursuant to Exemption (d) of the Public Records Law. Records in Existence The Town also explains that “with respect to Item 1, after diligent search, the Town does not have any responsive records.” The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Where the Town has confirmed that it does not possess records responsive to this part of the request, I find the Town has met its burden with regard to Item 1. 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

William Chenard SPR22/0067 Page 5 January 25, 2022 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, ~ ~-·· o ./J .A.~~- ~ . Rebecca S. Murray Supervisor of Records cc: Michael Saccone