Russell Williston v. Lancaster, Town of - Board of Selectmen (SPR 20220078)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 27, 2022 SPR22/0078 Jeff Nutting Interim Town Administrator Town of Lancaster 701 Main Street Lancaster, MA 01523 Dear Mr. Nutting: I have received the petition of Russ Williston appealing the response of the Town of Lancaster (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Williston requested “a copy of the Board of Selectmen executive session minutes for January 4th and January 14th.” The Town provided a response on January 11, 2022. Unsatisfied with the Town’s response, Mr. Williston petitioned this office and this appeal, SPR22/0078, 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(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. G. L. c. 66, § 10(b)(iv). 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. 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

Jeff Nutting SPR22/0078 Page 2 January 27, 2022 The Town’s January 11th Response In its January 11, 2022 response, the Town attached and referenced the Attorney General’s Open Meeting Law determination regarding the requested executive session meeting minutes. The Town explained that “[i]n the Attorney General's December 13, 2021 letter, [the Attorney General] found that the purpose for the executive sessions expired.” In the Open Meeting Law determination, the Attorney General’s Office stated: We therefore find that the original purpose for the executive sessions that took place on January 4 and January 14 have concluded and the minutes of both executive sessions can no longer be withheld from the public under the Open Meeting Law. See OML 2021-143 (finding that the purpose for an executive session had concluded when the public body issued a statement explaining that it had taken all the action it was authorized to take in response to a complaint). We therefore order the Board to release the January 4 and January 14 executive session minutes, and any documents or exhibits used during the executive sessions, unless the attorney-client privilege or an exemption to the Public Records Law permits the Board to withhold them from disclosure, in whole or in part. Additionally, in the January 11th response, the Town cited Exemption (c) for withholding the requested meeting minutes. The Town asserted that “the minutes are subject to Exemption (c) of the Public Records Law, which exempts personnel files from disclosure, as the executive sessions related to a complaint against a town employee.” Exemption (c) Exemption (c) permits the withholding of: 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. 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

Jeff Nutting SPR22/0078 Page 3 January 27, 2022 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 D-oe v. Re-gistrar of- Motor V-ehicles, 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 the January 11th response, I find the Town has not met its burden to withhold the meeting minutes under Exemption (c). Particularly, while portions of the record may fall within an exemption, it is uncertain how the meeting minutes, in their entirety, constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, upon review of the balancing test, it is unclear how a privacy interest of a government official conducting public business outweighs the public interest in this situation. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Also, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Williston with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Russ Williston Kathleen Rocoo, RAO Marc L. Terry, Esq.