Shira Stoll v. Mansfield, Town of - Town Clerk (SPR 20221405)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 30, 2022 SPR22/1405 Kevin J. Dumas Town Manager Town of Mansfield 6 Park Row Mansfield, MA 02048 Dear Mr. Dumas: I have received the petition of Shira Stoll, of NBC10 Boston, appealing the response of the Town of Mansfield (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 27, 2022, Ms. Stoll requested, “[a]ny report that Mathews and Mathews produced and provided to [the Town] regarding this investigation.” The Town responded on June 13, 2022. Unsatisfied with the response, Ms. Stoll petitioned this office and this appeal, SPR22/1405, 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. 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. The Town’s June 13th Response In its June 13th response, the Town cited Exemption (c) to withhold the requested 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

Kevin J. Dumas SPR22/1405 Page 2 June 30, 2022 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 Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. 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). 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). 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 Doe v. Registrar of Motor Vehicles, 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.

Kevin J. Dumas SPR22/1405 Page 3 June 30, 2022 In its response, the Town asserted that, “[t]he Mathews and Mathews report relates to a personnel/human resources investigation which does not involve any criminal allegations or allegations of misuse of police powers. This is not a case of a citizen complaint against a police officer(s) which resulted in an internal affairs investigation into police misconduct. Therefore, the report constitutes a personnel record which is exempt from disclosure under current case law. Further, the content of the report implicates medical privacy concerns and the report itself may ultimately be part of a medical record. Finally, releasing the report would also constitute an unwarranted invasion of privacy under the cited exemption.” The Superior Court addressed the application of the Worcester decision to the records of non-criminal Internal Affairs investigations in Leeman v. Cote. 21 Mass.L.Rptr. 411, 2006 WL 2661436 (Mass.Sup.Ct. 2006). In Leeman, the court specifically rejected a police department’s attempt “to distinguish Worcester Telegram on the basis of the identity of the applicant for the file and the absence of issues of theft, bribery, acceptance of gratuities, verbal or physical abuse, unlawful arrest, or harassment.” Id. at 5. The court found that “these considerations may temper the degree of public interest in disclosure of the [records], but they do not qualify the record as a personnel file or personnel information.” Id. The court further stated that “[t]he statutes contain no ‘non-police matter’ exemption.” Id. The court likewise rejected the argument that the identity of the complainant who initiated the investigation affects the status of the records. The court found that “the competence and integrity of a police force are intrinsically public concerns. That concern endures without regard to the identity of a complainant or inquisitor as either a member of the force or a member of the citizenry.” Id. at 6. Based upon the update to Exemption (c) where the amendment states that this “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the requested records can be withheld. Further, based on the Town’s response, the issues presented in this appeal appear analogous to that addressed by Justice Sikora in Leeman v. Cote. See Leeman v. Cote, Suffolk Superior Court Docket Number No. 0502352J (August 30, 2006). The fact that the requested records relate to employment decisions does not distinguish the records from those deemed public in Worcester. Accordingly, the responsive report is not exempt from disclosure under the personnel clause. See Worcester, 58 Mass. App. Ct. at 9 (finding that an internal affairs report and investigative documents fall outside the statutory exemption for “personnel [file] or information”). Therefore, I find that the Town has not met its burden to withhold the responsive report pursuant to Exemption (c). Order Accordingly, the Town is ordered to provide Ms. Stoll with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Kevin J. Dumas SPR22/1405 Page 4 June 30, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Shira Stoll