Russell Williston v. Lancaster, Town of (SPR 20221642)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2022 SPR22/1642 James G. Mullen, Jr. Interim Town Clerk Town Administrator Town of Lancaster 701 Main Street Lancaster, MA 01523 Dear Mr. Mullen: 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). On June 22, 2022, Mr. Williston requested, “…a copy of messages between the Town of Lancaster and Lancaster Council on [named person] regarding the termination of her employment sent between 6/13 and 6/22.” On July 7, 2022, the Town responded. Unsatisfied with the Town’s response, Mr. Williston petitioned this office and this appeal, SPR22/1642, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

James G. Mullen, Jr. SPR22/1642 Page 2 August 1, 2022 The Town’s July 7th response In its July 7, 2022 response, the Town provided three redacted records and withheld the remaining responsive records. The Town stated that the redactions and withholding of the remaining records were permitted under Exemption (c) of the Public Records Law. 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). 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. 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. Dept 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. In its July 7th response the Town stated, “[t]he Town has redacted three correspondences pursuant to exemption (c) of the Public Records Law…” Regarding the records that were

James G. Mullen, Jr. SPR22/1642 Page 3 August 1, 2022 withheld in their entirety the Town stated the following: “Here, the withheld communications concern the circumstances surrounding the end of an employment relationship between the Town and an employee. These records therefore fall within the “core category” of personnel information. The balancing test also swings heavily in favor of protecting the privacy interest of the named employee. Notably, disclosure of the information could impact the ability of the named individual to obtain future employment and the information in the records is not available from another source. While public employees have a diminished expectation of privacy in matters relating to their employment, the balance in this case – where records are directly tied to the end of employment – weighs in favor of the employee.” Based on the Town’s response, it is unclear how the redacted and/or withheld records constitute “core categories of personnel information” that are “useful in making employment decisions.” It is also not clear how the records contain intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. 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. Regarding the records that were withheld in their entirety it is unclear how the records could not be redacted. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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. 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, Manza Arthur Supervisor of Records cc: Russ Williston