Kevin Wood v. Georgetown, Town of - Town Clerk (SPR 20232707)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2023 SPR23/2707 Kerri A. McManus Town Clerk Town of Georgetown 1 Library Street Georgetown, MA 01833 Dear Ms. McManus: I have received the petition of Kevin Wood appealing the response of the Town of Georgetown (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 12, 2023, Mr. Wood requested “…for the period between 2016 to 2022 any complaints alleging and/or investigations of payroll fraud related to the conservation commission and any employee settlement agreements associated with payroll fraud in the conservation commission.” On October 30, 2023, the Town responded and indicated that it was withholding responsive records pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Town’s response, Mr. Wood petitioned this office and this appeal, SPR23/2707, 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, § l0A(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. 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

Kerri A. McManus SPR23/2707 Page 2 November 21, 2023 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 October 30th response In the Town’s October 30, 2023 response, it cited Exemptions (c) and (f) of the Public Records Law to withhold 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). 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). 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. 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

Kerri A. McManus SPR23/2707 Page 3 November 21, 2023 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 stated the following: The records that you are seeking relate directly to personnel matters regarding specifically identified individuals, which are being withheld pursuant to Exemption (c) of the Public Records Law. . . . After an individualized review of the records requested and the content of such records, the Town has determined that the requested documents will be withheld pursuant to Exemption (c) . . . Specifically, the records at issue relate directly to personnel matters and also include private, familial information regarding specifically identified individuals contained in the records. Redaction is not possible in this instance as the identity of the individuals could be confirmed given the content of the records requested and implicate the individual(s) privacy interests. Based on the Town’s response, it is unclear how the requested 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, nor response how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it is not clear whether any of the information is available from other sources. PETA, 477 Mass. at 292. 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. 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 v. Chief of Police of Lexington, 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

Kerri A. McManus SPR23/2707 Page 4 November 21, 2023 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 stated the following: After careful review of your request and the records involved, the documents cannot be provided at this time pursuant to Exemption (f) of the Public Records Law without jeopardizing an ongoing investigation. In addition to protecting records of ongoing investigations, Exemption (f) has been held to allow investigative officials to provide an assurance of confidentiality to persons so that they will speak openly about matters under investigation. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1960). Where identifying details regarding voluntary witnesses or complainants are inextricably intertwined with other information in the responsive record, such as in this instance, the responsive record will be withheld in its entirety. Although the Town claims that there is an ongoing investigation regarding the requested records, it is unclear whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. Neither is it clear how the requested records are related to the ongoing investigation. Also, the Town did not provide any supporting information to demonstrate how disclosure of any portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). Further, it is not clear how “. . . identifying details regarding voluntary witnesses or complainants are inextricably intertwined with other information in the responsive record” that redactions cannot be made to preserve anonymity. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Burden of specificity; segregable portions The Town has not met its burden of specificity in claiming Exemptions (c) and (f) to withhold the requested records. Pursuant to 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. Further, it is unclear what records the Town possesses that it withheld under Exemptions (c) and (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G.

Kerri A. McManus SPR23/2707 Page 5 November 21, 2023 L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the Town must identify the type of record(s) it has in its possession that it withheld under Exemptions (c) and (f). Conclusion Accordingly, the Town is ordered to provide Mr. Wood 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 the response to this office at pre@sec.state.ma.us. Mr. Wood may appeal the substantive nature of the Town’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kevin Wood