Russell Williston v. Lancaster, Town of (SPR 20233131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2024 SPR23/3131 Kate Hodges Town Administrator Town of Lancaster 701 Main Street Lancaster, MA 01523 Dear Ms. Hodges: I have received the petition of Russ Williston appealing the response of the Town of Lancaster (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 23, 2023, Mr. Williston requested “‘Level Three grievance filed by the AFSCME Local 3720 Union regarding discipline’ related to the Executive Session held by the select board on 10/23.” Previous appeal The requested records were the subject of a previous appeal. See SPR23/2549 Determination of the Supervisor of Records (December 20, 2023). In my December 20th determination, I closed the appeal on the understanding that the Town intended on providing a subsequent response. The Town provided a response on December 28, 2023. Unsatisfied with this response, Mr. Williston petitioned this office and this appeal, SPR23/3131, 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. 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

Kate Hodges SPR23/3131 Page 2 January 16, 2024 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 December 28th response In its December 28, 2023 response, the Town provides further information regarding its withholding of the records under Exemption (c) of the Public Records Law. The Town also cites Exemption (f) and pending litigation. In support of its claim of pending litigation, the Town states the following: Finally, record(s) responsive to this request surround, and have become part of, the record relative to ongoing legal proceedings and other threatened litigation including, but not limited to Gr: #738-23, 2023-312 which the Bargaining Unit filed with the Labor Relations Council on December 8, 2023. The Town has not yet been provided a case number, or numbers, relative to other actual or threatened litigation matters; however, to protect the integrity to the Town’s litigation and bargaining strategies, no records relative to this matter shall be made public at this time. Exemption (c) Exemption (c) permits the withholding of: 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

Kate Hodges SPR23/3131 Page 3 January 16, 2024 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). 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). 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. Citing Exemption (c), the Town states the following: Any records(s) responsive to this request are exempt from disclosure under exemption (c), specifically named individuals, as the disclosure of which may constitute an unwarranted invasion of personal privacy. Additionally, the Massachusetts Supreme Judicial Court determined that exempting, personnel information from disclosure serves to protect the government’s ability to function effectively as an employer. [Wakefiled [sic] Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792, 802 (2000)] and while statutorily exempting personnel information the expansive definition of public records is not explicitly defined, judicial decisions acknowledge the term is not exact and therefore rely on record’ custodian’s case-specific determinations. [Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass App Ct 1, 5(2003)]. To determinate applicability, the RAO’s consider the nature or character of the documents as opposed to the document’s label. The document(s) which may be responsive to your request include personnel information and confidential witness statements which the appointing authority used to make an employment decision. Based on the Town’s response, the Town has not demonstrated that the record constitutes one of the core categories of personnel information useful in making employment decisions

Kate Hodges SPR23/3131 Page 4 January 16, 2024 regarding an employee. Also, the Town has not explained how the record contains intimate details of a highly personal nature or how disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Town did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining this information outweighs the seriousness of any invasion of privacy. It is further unclear why the records must be withheld in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Town must clarify these matters. 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 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 289-290. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction.

Kate Hodges SPR23/3131 Page 5 January 16, 2024 Citing Exemption (f), the Town states the following: [The] Town is also able to confirm that the record(s) responsive to your request are also exempt under Exemption (f) -- The Investigatory Exemption. Materials responsive to your request were necessarily compiled out of the public’s view by law enforcement and other investigatory officials including myself. The disclosure of these materials would compromise the investigative efforts of the Town and disclosure of such has been deemed to not be in the public’s best interest. The investigation, including any residual charges, has yet to be finalized and, moreover, the statute of limitations surrounding any criminal complaints relative to the matters have not yet expired. The Case Number for the incident, for your reference, is 23LAN-387-OF, 23-53036. Additionally, material(s) responsive to the request contain confidential witness statements which the Town is permitted to withhold under Exemption (f) because the identity of the witnesses are likely known to you and would be known to any other member of the public who may view them. Such record(s) could not possibly be redacted in a manner that would avoid witness or victim identification and, therefore, the Town has chosen to sequester them to uphold the Town’s litigation, bargaining, and investigatory positions and strategies. To the extent that the record contains identifying information regarding voluntary witnesses, the Town may permissibly withhold such portions from disclosure. However, it is unclear how the record, in its entirety, can be withheld under Exemption (f). It is further unclear from the Town’s response whether the record contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. Additionally, the Town did not demonstrate how disclosure of any segregable portion of the record “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). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). Conclusion Accordingly, the Town is ordered to provide Mr. Williston with a response 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.

Kate Hodges SPR23/3131 Page 6 January 16, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Russ Williston