Andrew Quemere v. Egremont, Town of - Town Clerk (SPR 20231057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 2, 2023 SPR23/1057 Juliette Haas Town Clerk Town of Egremont 171 Egremont Plain Road South Egremont, MA 01258 Dear Ms. Haas: I have received the petition of Andrew Quemere appealing the response of the Town of Egremont (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, Mr. Quemere requested the following records for a named person: [1] All internal affairs records for [an identified individual] [2] All records discussed at any disciplinary hearings for [an identified individual] [3] All letters, emails, and other communications informing [an identified individual] of a disciplinary hearing and all responses from [an identified individual] [4] All letters, emails, and other communications informing [an identified individual] of the outcome of a disciplinary hearing and all responses from [an identified individual] [5] All letters, emails, and other communications informing [an identified individual] of a change to his employment status and all responses from [an identified individual] [6] All letters, emails, and other communications by [an identified individual] informing the [T]own of his resignation [7] All severance agreements with [an identified individual]. Prior Appeals The requested records were the subject of prior appeals. See SPR23/0583 Determination of the Supervisor of Records (March 31, 2023); SPR23/0626 Determination of the Supervisor of Records (April 14, 2023) and SPR23/0802 Determination of the Supervisor of Records (May 9, 2023). In my May 9th determination, I ordered the Town to provide Mr. Quemere with a 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

Juliette Haas SPR23/1057 Page 2 June 2, 2023 to the request. On May 18, 2023, the Town responded. Unsatisfied with the Town’s response, Mr. Quemere petitioned this office and this appeal, SPR23/1057, 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. 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 May 18th Response In its May 18, 2023 response, the Town states: [1.] All internal affairs records for (an identified individual) - Withheld under [Exemptions (c) and (f)]. [2.] All records discussed at any disciplinary hearings for (an identified individual) - Withheld under [Exemptions (c) and (f)]. MGL Chapter 30A, Section 22 (g)(2). [3.] All letters, emails, and other communication informing (an identified individual) of a disciplinary hearing and all responses from (an identified individual) – Withheld under [Exemption (c) and (f)]. [4.] All letters, emails, and other communications informing (an identified individual) of the outcome of a disciplinary hearing and all responses from (an identified individual) - Withheld under Exemption F of MGH Chapter 4, Section 7 (26) (c) & (f) [5.] All letters, emails, and other communications informing (an identified individual) of a change to his employment status and all responses from (an identified individual) - Withheld under [Exemptions (c) and (f)]. [6.] All letters, emails, and other communications by (an identified individual) informing the Town of his resignation - No such documents exist.

Juliette Haas SPR23/1057 Page 3 June 2, 2023 [7.] All severance agreements with (an identified individual) - no such documents exist. Current Appeal In his appeal, Mr. Quemere argues: Despite your determination, the town has stated in a new response that it is withholding all records under exemptions C and F without providing any specific reason why these exemptions apply to the records. Please again order the town to comply with the public records law. Due to the town’s repeated failure to provide a specific explanation for withholding the records, I ask that you consider conducting an in camera inspection of these records to determine whether these exemptions apply. 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. 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 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

Juliette Haas SPR23/1057 Page 4 June 2, 2023 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. 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). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass at 62. Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(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 . . .”); see also Globe Newspaper ----------------- Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein ------------

Juliette Haas SPR23/1057 Page 5 June 2, 2023 v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town’s response did not contain the specificity required in a denial of access to public records. The Town merely cites Exemptions (c) and (f) without any explanation of the applicability of the exemptions to the responsive records. 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. Quemere 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. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere