Amanda Alix v. Shutesbury, Town of (SPR 20240018)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 18, 2024 SPR24/0018 Grace Bannasch Town Clerk Town of Shutesbury 1 Cooleyville Road Shutesbury, MA 01072 Dear Ms. Bannasch: I have received the petition of Amanda Alix appealing the response of the Town of Shutesbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 15, 2023, Ms. Alix requested the following records: [1.] Any emails, letters, text messages, documents, or communications of any kind to, from, or signed by any Shutesbury Town Official or Department Head regarding queries about and/or references to the ‘Lot O-32 Remediation Oversight Group’ or ‘Public Involvement Plan Group’ or ‘PIP’ or any of its members between January 1, 2023, and the present to include the ‘information request’ sent to the Shutesbury Conservation Commission in May 2023 and all emails, letters, text messages, documents, or communications of any kind related thereto; [2.] The written complaint received by the Shutesbury Select Board submitted and signed by the Shutesbury Police Chief regarding the Shutesbury Conservation Commission, its Chair . . ., and a Shutesbury property located at [a specific address]; [3.] Written complaints received by the Shutesbury Select Board against any Shutesbury Town Official or Department Head submitted/signed by other Town Officials or Department Heads between January 1, 2022 and the present; [4.] Written complaints received by the Shutesbury Select Board against Shutesbury Conservation Commission Chair . . . and submitted and signed by persons identifying themselves as the owners and residents of . . .; [5.] The full Zoom recording of the 12/5/23 Library Building Committee meeting 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

Grace Bannasch SPR24/0018 Page 2 January 18, 2024 (the uploaded version starts during a presentation by [a named individual]). The Town provided a response on December 18, 2023. Unsatisfied with the response, Ms. Alix petitioned this office and this appeal, SPR24/0018, 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. The Town’s December 18th response In its December 18, 2023 response, the Town provides Ms. Alix with records responsive to Items 1 and 5 of her request. The Town cites Exemptions (c) and (f) of the Public Records Law to withhold records responsive to Items 2-4 of her request. The Town states the following regarding the withheld records: Based on my conversation with the Town Administrator, my current understanding is that there are 5 responsive records to these portions of your request. One is a complaint filed by the named residents against [a named individual]. One is a complaint filed by Town Clerk . . . against [a named individual]. One is a complaint filed by Police Chief [named individual] against [named individual]. Two are complaints filed by [a named individual] against both Town Clerk . . . and [a named individual], respectively. All of these complaints were filed in November or December of 2023 and contain unresolved accusations pertaining to recent incidents that are currently being investigated by the Selectboard as part of an ongoing internal personnel process. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating

Grace Bannasch SPR24/0018 Page 3 January 18, 2024 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). 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: Because their public release at this moment could impede the Selectboard’s ability to adjudicate the complaints and make employment decisions, outweighing

Grace Bannasch SPR24/0018 Page 4 January 18, 2024 the public interest in viewing the unresolved accusations, and because these are personnel records pertaining to specific employees and the release of unresolved accusations could result in personal embarrassment to an individual of normal sensibilities, potentially by encouraging reputationally damaging innuendo and speculation which could constitute a violation of privacy rights, these records are currently exempted from public disclosure under Exemption C. Based on the Town’s response, the Town has not demonstrated that the records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. Further, the Town has not established that the information contained in the records constitutes intimate details of a highly personal nature. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. It is further uncertain 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

Grace Bannasch SPR24/0018 Page 5 January 18, 2024 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. Citing Exemption (f), the Town states the following: Public release of these complaints at this juncture could severely impede the Selectboard’s ability, as the executive body, to investigate personnel complaints, now and in the future. These records are being compiled out of the public view as part of an ongoing investigatory proceeding. Once the Selectboard has completed their internal personnel process, then these records will be available to the public. Based on the Town’s response, it is unclear whether the records contain 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 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). 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). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Ms. Alix 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. Sincerely, Manza Arthur Supervisor of Records cc: Amanda Alix