Russell Williston v. Lancaster, Town of (SPR 20220333)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 24, 2022 SPR22/0333 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.” Previous Appeal This request was the subject of a previous appeal. See SPR22/0078 Supervisor of Records Determination (January 27, 2022). In my January 27th determination, I ordered the Town to clarify matters concerning its claim to withhold responsive records pursuant to Exemption (c) of the Public Records Law. Subsequently, the Town responded on February 10, 2022, providing responsive records in redacted form. Unsatisfied with the Town’s response, Mr. Williston 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). 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 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 SPR22/0333 Page 2 February 24, 2022 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. Williston first contends that “the identity of the employee involved is already public information. The meeting agenda listed the reason for the executive session, and listed ‘specifically Town Administrator.’” Second, he challenges the redactions of the names of witnesses. Third, he challenges the Town’s assertion that part of the record is “a personnel record and absolutely exempt from disclosure.” The Town’s February 10th Response In its February 10, 2022 response, the Town cites Exemption (c) of the Public Records Law for redacting the responsive records. 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). 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 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).

Jeff Nutting SPR22/0333 Page 3 February 24, 2022 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: The minutes are redacted pursuant to Exemption (c) to the extent they constitute personnel records. Specifically, the redacted content includes the identity of the employee involved and the complaint against the employee. As a complaint naming a specific employee may be used to make an employment decision, it is a personnel record and absolutely exempt from disclosure. Further, the names of witnesses have been redacted to ensure that individuals are not discouraged from bringing concerns forward. With regard to the identity of the employee against whom the complaint was made, I find the Town has not met its burden to redact this information. Specifically, with regard to the balancing test described above, the Town has not demonstrated how the privacy interest of the government official conducting public business outweighs the public interest in knowing whether such public servants are carrying out their duties in a law abiding and efficient manner. See PETA, 477 Mass. at 292. Further, based on the information provided in Mr. Williston’s appeal petition, and the agendas for the special meetings posted on the Town’s website, it appears this information is available from other sources. See id. With regard to the names of the witnesses and complainant who contacted the Selectman, although this specific information may be properly redacted, it is unclear how large portions of Selectman Allison’s complaint may be redacted. The Town must explain whether additional segregable portions of the complaint 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). Conclusion Accordingly, the Town is ordered to provide Mr. Williston 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.

Jeff Nutting SPR22/0333 Page 4 February 24, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Russ Williston