Nada Fabrizio v. Truro, Town of - Town Clerk (SPR 20232027)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2023 SPR23/2027 Noelle Scoullar Executive Assistant Town of Truro 24 Town Hall Road Truro, MA 02666 Dear Ms. Scoullar: I have received the petition of Nada Milosavljevic-Fabrizio appealing the response of the Town of Truro (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 18, 2023, Ms. Fabrizio requested the following: 1. Any documents related to evaluations of [a named individual’s] performance as Town Manager; and any other records, formal or informal, including written or recorded oral comments or findings, reflecting the Select Board members’ individual or collective commentary of any type concerning his performance. 2. Any and all records of complaints filed against [the individual] by any employee, Town of Truro Board or Committee member, vendor, contractor, Commonwealth of Massachusetts official or agency; and any taxpayer or resident (full or part-time). 3. Any documents or other communications regarding [the individual’s] positions on or advocacy of specific uses, exchanges, or restrictions on public or private land within Truro including but not limited to those with representatives or employees of [specific organizations] and State elected officials or employees. 4. Any documents or other communications regarding [the individual’s] positions on or advocacy of specific Budget Overrides and proposed uses of Free Cash during his tenure. These include but are not limited to coordination with members of the Truro Finance Committee; Truro employees and employees and board members of the Community Development Partnership. The Town responded on June 8, 2023, citing Exemptions (a), (c), and (d) of the Public Records Law for withholding records responsive to Parts 1 and 2 of the request, and indicating it does not possess records responsive to Part 3 and that it may possess records responsive to Part 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

Noelle Scoullar SPR23/2027 Page 2 September 12, 2023 4. See G. L. c. 4, § 7(26)(a), (c), (d). Unsatisfied with the Town’s response, Ms. Fabrizio appealed, and this case 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. 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 June 8th Response In its June 8, 2023 response, the Town cites Exemptions (a), (c) and (d) for withholding records responsive to Parts 1 and 2 of the request, and indicates it does not possess records responsive to part 3, and may possess records responsive to Part 4. See G. L. c. 4, § 7(26)(a), (c), (d). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Noelle Scoullar SPR23/2027 Page 3 September 12, 2023 This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 214, § 1B, The Privacy Statute In its June 8, 2023 response, the Town cites G. L. c. 214, § 1B for withholding records responsive to Parts 1 and 2 of the request. Known as the Privacy Statute, c. 214, § 1B provides in pertinent part: A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § 1B. This statute does not specifically, nor by implication, exempt any particular records from disclosure; therefore, this statute does not operate under Exemption (a) for the withholding of records or information responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). Therefore, this statute does not allow for the withholding of the requested records. 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.

Noelle Scoullar SPR23/2027 Page 4 September 12, 2023 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). 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. Regarding Parts 1 and 2 of the request, under Exemption (c), the Town argues that “information in the documents is protected under the second clause of exemption (c).” The Town goes on to argue that “disclosure of such personal information would constitute an unwarranted invasion of personal privacy and disclosure may subject the Town to liability pursuant to G.L. c. 214, § 1, such information will also be withheld and/or redacted, as appropriate, pursuant to exemption (c).” Based on the Town’s response, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the Town did not provide 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. PETA, 477 Mass. at 292. The Town must clarify these matters. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as

Noelle Scoullar SPR23/2027 Page 5 September 12, 2023 opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Regarding Parts 1 and 2 of the request, under Exemption (d), the Town argues that “The evaluation process for the Town Manager is not yet complete and on that basis the documents are being withheld. Any complaints made against the Town Manager are likewise unresolved.” Based on the Town’s response, it is unclear how the withheld records relate to a deliberative process, nor how such a process remains ongoing. Additionally, the Town has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra- agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). The Town must clarify these matters. Burden of Specificity Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. In this case, it is unclear from the Town’s response which specific records the Town intends to withhold or redact. The Town must identify the records, categories of records, or portions of records it intends to withhold. See G. L. c. 66, § 10(b)(iv) (a 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”). Additionally, based on the Town’s response, it is unclear how the records can be withheld in their entirety. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Records in Existence; Possession, Custody, or Control The Town is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their

Noelle Scoullar SPR23/2027 Page 6 September 12, 2023 superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). With regard to Part 3 of the request, the Town states that “the Town has no such documents,” and with regard to Part 4 of the request, the Town states that “the Town may have documents responsive to the request. It is expected that a search of town records will require --- hours [sic] of work at $50.00 per hour.” In her appeal petition, Ms. Fabrizio contends that “the Town Manager made a joint presentation with the Town Assessor on June 13, 2023 as SB Agenda item 7C which specifically references CCNS land exchanges. Clearly, such a topic must have been reflected in documents in the Town Manager and/or Town Assessor’s possession.” Based on the Town’s response, and in conjunction with information provided in Ms. Fabrizio’s appeal, it is unclear whether the Town possesses records responsive to Parts 3 and 4 of Ms. Fabrizio’s request. If the Town does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records, or provide a good faith fee estimate for producing the records. See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the Town is ordered to provide Ms. Fabrizio with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Nada Milosavljevic-Fabrizio