Harold Rhodes v. Milford, Town of - Town Administrator (SPR 20230106)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 9, 2023 SPR23/0106 Richard A. Villani Town Administrator Town of Milford 52 Main Street, Room #11 Milford, MA 01757 Dear Mr. Villani: I have received the petition of Harold S. Rhodes appealing the response of the Town of Milford (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 30, 2022, Mr. Rhodes requested the following records: 1. Meeting minutes for all meetings during 2020, 2021, and 2022 for the Milford Retirement Board, or where these minutes can be found on the Town website. 2. A list of all retirees and the amount of their retirement benefit. It would be appreciated if the department from which each retiree retired would be included. On December 12, 2022, Mr. Rhodes modified his request as follows: I am requesting all emails, since January 1, 2022, that include my name, in any form, written by, or in the possession of, any Town Employee, any Special Municipal Town Employee, any person who provides contractual services, or any other person who falls directly and indirectly within your jurisdiction or supervision (except for any emails to or from [named persons] that directly concern the pending litigation). Prior Appeal The requested records were the subject of a prior appeal. See SPR22/2863 Determination of the Supervisor of Records (December 27, 2022). On January 5, 2023, the Town responded. Unsatisfied with the Town’s response, Mr. Rhodes petitioned this office and this appeal, SPR23/0106, was opened as a result. Subsequently the Town provided a further response on January 24, 2023. Mr. Rhodes has appealed the January 24th response. 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

Richard A. Villani SPR23/0106 Page 2 February 9, 2023 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 January responses In its January 5, 2023 response, the Town asked Mr. Rhodes to confirm withdrawal of the December 12, 2022 request. Upon review of the Town’s supplemental response dated January 24, 2023, it appears that Mr. Rhodes withdrew his December 12, 2022 request for emails and is now only contesting redacted retirement board meeting records pursuant to Exemption (c) of the Public Records Law. In Its January 24, 2023 response, the Town provided further explanation regarding the Exemption (c) redactions to the meeting minutes for meetings during 2020, 2021, and 2022. 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 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.

Richard A. Villani SPR23/0106 Page 3 February 9, 2023 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. Sch. 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 Fin., 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. In its response, the Town advised, “[t]he redactions are names of specific individuals who filed medical claims with the Town. It is important to protect the privacy interest of any individual who has filed a medical disability claim. The public interest in obtaining the names of these individuals does not substantially outweigh the seriousness of any invasion of privacy.” In camera inspection In order to facilitate a determination as to the applicability of the exemption claim made by the Town to redact the records, the Town must provide this office with an un-redacted copy of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Town’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an

Richard A. Villani SPR23/0106 Page 4 February 9, 2023 in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Harold C. Rhodes