Kevin Wood v. Georgetown, Town of - Town Clerk (SPR 20240081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2024 SPR24/0081 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.” Previous Appeals This request was the subject of previous appeals. See SPR23/2707 Determination of the Supervisor of Records (November 21, 2023) and SPR23/2975 Determination of the Supervisor of Records (December 22, 2023). In my December 22nd determination, I ordered the Town to provide Mr. Wood with a further response to his request. Subsequently, the Town responded on January 8, 2024, providing responsive records and citing Exemption (a), (c) and (o) of the Public Records Law, as well as the Open Meeting law, for redacting others. See G. L. c. 4, § 7(26)(a), (c), (o); G. L. c. 30A, § 21. Unsatisfied with the Town’s response, Mr. Wood 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). 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 SPR24/0081 Page 2 January 24, 2024 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. 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. Current Appeal In his appeal petition, Mr. Wood contends that the Town’s January 8, 2024 response “does not address the concerns in [his] original appeal.” In a December 11, 2023 email to this office, Mr. Wood further contends that “[r]edactions throughout the 28 pages [of records] are excessive and inconsistent.” He further contends that “[t]he Town has refused to provide Executive Session minutes. The purpose for these Executive Sessions has long passed.” The Town’s December 7th and January 8th Responses In its December 7, 2023 and January 8, 2024 responses, the Town provides numerous records in redacted form, and cites Exemptions (a), (c) and (o) of the Public Records Law, along with the Open Meeting Law, for redacting responsive records. See G. L. c. 4, § 7(26)(a), (c), (o); G. L. c. 30A, § 21. 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

Kerri A. McManus SPR24/0081 Page 3 January 24, 2024 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 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. In its January 8th response, under Exemption (c), the Town argues the following: Here, it is the Town’s position that the information contained in the additional records requested, which you were previously provided in redacted form, will need to remain redacted under Exemption (c) given the content of the enclosed records and the personnel information contained therein. Specifically, personnel, familial and details of a highly personal nature and other information relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy, resulting in the potential disclosure of highly personal details. As noted previously, the records at issue relate to personnel matters and also include personal, familial information regarding specifically identified individuals contained in the records, the identities of which are known to [the requestor]. Accordingly, the Town submits that the requested records have been properly redacted to remove certain information protected 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. 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.

Kerri A. McManus SPR24/0081 Page 4 January 24, 2024 Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o). In its January 8th response, under Exemption (o), the Town argues “that the home addresses, personal phone numbers and personal email addresses of Town employees and public body members may be redacted pursuant to Exemptions (o) and (c) of the Public Records Law.” Where the home addresses, phone numbers, and personal email addresses of Town employees may be redacted under Exemption (o), I find the Town has met its burden to redact that specific information from the records. Consequently, I decline to address the application of Exemption (c) to that specific information. Open Meeting Law In its January 8th response, the Town states the following: With respect to the remaining records that [Mr. Wood was] previously provided, the Town maintains that the executive session materials that [he was] already provided in redacted form, which contain confidential information, may be withheld pursuant to G.L. c. 30A, s. 21, the Open Meeting Law, as that statute operates through Exemption (a), as well as Exemptions (c) and (o) of the Public Records Law, as outlined below. In its December 7th response, the Town argues that “executive session materials have been redacted from the enclosed records under G.L. c. 30A, s. 21, the Open Meeting Law, as that statute operates through Exemption (a).” In its January 8th response, the Town reiterates that “given the content of the executive session materials, which are contained in specifically identified personnel files, redactions are appropriate under G.L. c. 30A, s. 21, the Open Meeting Law, as that statute operates through Exemption (a).”

Kerri A. McManus SPR24/0081 Page 5 January 24, 2024 The Town’s responses, along with Mr. Wood’s appeal petition, raise several issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. Consequently, I encourage the parties to contact the AGO for a determination concerning the Open Meeting Law issues. Further, based on the Town’s responses, it is unclear which portions of the records are being withheld or redacted under Exemption (c), and which are being withheld or redacted under the Open Meeting Law. The Town must clarify this. 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. Sincerely, Manza Arthur Supervisor of Records cc: Kevin Wood