Peter J. Duffy, Esq. v. Needham, Town of (SPR 20230868)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2023 SPR23/0868 Theodora K. Eaton Town Clerk Needham Town Hall 1471 Highland Avenue Needham, MA 02492 Dear Ms. Eaton: I have received the petition of Peter J. Duffy, Esq. appealing the response of the Town of Needham (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 6, 2023, Attorney Duffy requested: [A] copy of the settlement agreement referenced in the first paragraph of this February 14, 2023 joint statement issued by the Town of Needham and the Lawyers for Civil Rights concerning the resolution of the subject(s) of the lawsuit brought by [a named individual] against the Town of Needham and others in the United States District Court for the District of Massachusetts, Civil Action No. 1:21-cv-11116, including all exhibits to the settlement agreement, amendments to the settlement agreement, ancillary agreements, and associated documents concerning terms of the settlement agreement. Previous Appeal This request was the subject of a previous appeal. See SPR23/0637 Determination of the Supervisor of Records (April 10, 2023). In my April 10th determination, I ordered the Town to provide Attorney Duffy with a response to his request. On April 25, 2023, the Town responded. Unsatisfied with the Town’s response, Attorney Duffy petitioned this office and this appeal, SPR23/0868, 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 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

Theodora K. Eaton SPR23/0868 Page 2 May 16, 2023 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 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. The Town’s April 25th Response In its April 25, 2023 response, the Town asserts that it is continuing to redact the settlement sum in the settlement agreement pursuant to Exemption (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). 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). 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.

Theodora K. Eaton SPR23/0868 Page 3 May 16, 2023 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). 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 argues: [The named individual] is the individual most affected by the January 2020 incident that prompted the litigation and settlement agreement, and he is the individual most affected by the outcome of Mr. Duffy’s public records request. Mr. Henry declined to agree that the settlement sum may be publicly disclosed, and he has specifically stated through counsel that the release of the settlement sum would constitute an unwarranted invasion of his personal privacy. [The named individual’s] counsel has stated that the release of this personal financial information would subject [the named individual] and his family to ongoing public comment, in the communities in which he resides and works, at a time where he is trying to put this matter behind him….[The identified individual] is not a public employee who would “have a diminished expectation of privacy”…and he has a significant interest in keeping the settlement sum from becoming public….Under these circumstances, the balancing of interests under exemption (c) supports the redaction of the settlement sum in order to protect [the named individual’s] personal privacy. Based on the Town’s response, it is unclear how the redacted information constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, upon review of the balancing test, it is unclear how a possible privacy interest outweighs the public interest in this public expenditure. Conclusion Accordingly, the Town is ordered to provide Attorney Duffy with a response to his 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 the response to this office at pre@sec.state.ma.us. Attorney Duffy may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Theodora K. Eaton SPR23/0868 Page 4 May 16, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Peter J. Duffy, Esq. Chair Marianne Cooley Christopher H. Heep, Esq.