Thomas V. Ralph v. Boxborough, Town of - Town Clerk (SPR 20232522)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2023 SPR23/2522 Rebecca J. Harris, PhD. Town Clerk Town of Boxborough 29 Middle Road Boxborough, MA 01719 Dear Dr. Harris: I have received the petition of Attorney Thomas V. Ralph appealing the response of the Town of Boxborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 21, 2023, Attorney Ralph requested, among other items, the following: Any and all incident reports, police reports, supplemental reports, or memorandum/randa of interviews, notes, employment applications, names of individuals interviewed, background check releases, and emails (internal and external) relative to the background investigation for [a named individual] conducted as part of the background check for Fire Chief during the period dated 06/01/2023 to 07/24/2023. Previous Appeal This request was the subject of a previous appeal. See SPR23/2058 Determination of the Supervisor of Records (September 13, 2023). In my September 13th determination, I ordered the Town to clarify its claims under Exemptions (b) and (f) of the Public Records Law for withholding responsive records. Subsequently, the Town responded on October 23, 2023. Unsatisfied with the Town’s response, Attorney Ralph further 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 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

Rebecca J. Harris, PhD. SPR23/2522 Page 2 November 6, 2023 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. The Town’s September 27th Response In its September 27, 2023 response, the Town states that “the background investigation documents are being withheld in their entirety pursuant to Exemptions (b) and (f) of the Public Records Law.” The Town also states that it is withholding the documents pursuant to Exemption (c). See G. L. c. 4, § 7(26)(b), (c), (f). Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest

Rebecca J. Harris, PhD. SPR23/2522 Page 3 November 6, 2023 or which would compromise security if disclosed). Under Exemption (b), the Town argues the following: As part of its conditional hiring process for certain high level positions, the Town conducts a background check of the candidate. The results of that background check are used by the Town solely for making initial hiring decisions. The information and documents that are gathered in connection with the background checks are not made publicly available regardless of whether or not an individual is hired for a position. The information, provided with the authorization of the candidate, is exclusively for the Town’s use regarding its internal hiring practices, and the disclosure of such records would be detrimental to the Town’s governmental functions and hiring processes. Specifically, generally speaking, information that is contained in a background investigation can include, but is not necessarily limited to, information regarding the candidate’s criminal history and background, the candidate’s reputation and character amongst neighbors, friends, co-workers or other members of the candidate’s personal and/or professional life, the individual’s personal finances and management, and other information that is of a highly personal and sensitive nature, which involves interviews with third parties who voluntarily provide such information as part of the hiring process to investigators. Public disclosure of such information would have a chilling effect on future job candidates’ willingness to apply for such positions with the Town due to the fear of having the results of their background investigation being made publicly available, whether they are ultimately hired for the job or not, and detail the scope of the hiring process practice for potential future applicants. Thus, the public disclosure of the results of the Town’s background investigations would effectively force the Town to forego the conducting of a background check as part of its initial hiring process altogether, or else risk shrinking the potential pool of applicants to a substantially smaller size. For these reasons, the Town asserts that the background investigation documents ... are subject to withholding in their entirety under Exemption (b). 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

Rebecca J. Harris, PhD. SPR23/2522 Page 4 November 6, 2023 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. 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. Under Exemption (c), the Town argues the following: In this instance, the Town has carefully considered the application of Exemption (c) to the background investigation documents requested, which documents contain details of a highly personal nature regarding third parties, to determine whether disclosure of the information is such that the public’s right to know outweighs any individual(s) privacy rights, and further, has considered the factors set forth in the PETA case cited above. In carefully balancing these interests, the Town has concluded that it is appropriate to withhold certain information contained in the background investigation documents under Exemption (c). Specifically, the background investigation records at issue contain information of a highly personal nature provided by voluntary witnesses and complainants and other third parties which, to the Town’s knowledge, is not available from any other sources, and the identities of which are known to the former employment applicant. Such information includes, but is not necessarily limited to, information about specifically identified individuals’ medical matters, familial and interpersonal matters, alcohol use, relationship information, reputational information and other highly personal information regarding third parties provided to the investigator as part of said investigation. 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

Rebecca J. Harris, PhD. SPR23/2522 Page 5 November 6, 2023 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 v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). 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. Under Exemption (f), the Town argues the following: Following the Town’s careful review of the background investigation records, the Town advised you that those documents were being withheld in their entirety as the release of said records would disclose confidential investigative techniques, procedures and/or sources of information relative to the subject investigation that could impact future investigations, as well as information provided voluntarily by third-parties during said investigation the identities of which are known to your client. . . . Since it was [Attorney Ralph’s client] background that the Town was investigating, he would obviously have substantial personal knowledge of the relevant facts and circumstances that are detailed in the background investigation documents and the information provided to the Town’s investigator by voluntary witnesses. Given the extent of his personal knowledge, the redaction of the names of the witnesses that voluntarily participated in said investigation would not serve to shield their identities from [Attorney Ralph’s client], who are clearly known and familiar to him. Where identifying details regarding voluntary witnesses or complainants are inextricably intertwined with other information in the responsive record, the responsive record can be withheld in its entirety pursuant to Exemption (f) of the Public Records Law. Duty to Segregate Although portions of the background investigation documents may fall within the above claimed exemptions, it remains unclear how the records can be withheld in their entirety. Particularly, it is uncertain how non-exempt data is so inextricably intertwined with exempt data that records cannot be segregated. 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).

Rebecca J. Harris, PhD. SPR23/2522 Page 6 November 6, 2023 Conclusion Accordingly, the Town is ordered to provide Attorney Ralph with a response to his 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: Thomas V. Ralph, Esq.