Allison Jenkins v. Reading, Town of - Town Clerk (SPR 20240187)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 5, 2024 SPR24/0187 Matthew A. Kraunelis, Esq. Assistant Town Manager Town of Reading 16 Lowell Street Reading, MA 01867 Dear Attorney Kraunelis: I have received the petition of Allison Jenkins appealing the response of the Town of Reading (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 2, 2023, Ms. Jenkins requested the following records: [1.] ... a copy of the Regina Ryan investigation done in 2022. [2.] ... a copy of the file that has the premium pay paid to employees from the ARPA fund. Prior Appeals and Reconsideration The requested records were the subject of prior appeals and a subsequent reconsideration. See SPR23/1424 Determination of the Supervisor of Records (July 6, 2023), SPR23/1552 Determination of the Supervisor of Records (July 18, 2023), and SPR23/2730 Determinations of the Supervisor of Records (November 22, 2023 and January 16, 2024). In my January 16, 2024 determination, I found that Ms. Jenkins did timely appeal the Town’s July 31st response on August 18th. The Town responded on November 14, 2023. Unsatisfied with the response, Ms. Jenkins petitioned this office and this appeal, SPR24/0187, 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

Matthew A. Kraunelis, Esq. SPR24/0187 Page 2 February 5, 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(d)(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…”); 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). 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 November 14th Response In its November 14, 2023 response, the Town referenced its letter of July 31, 2023, in which it cited Exemptions (c) and (d) of the Public Records Law and attorney-client privilege to withhold the requested records. In a prior response dated June 20, 2023, the Town produced a “copy of the file containing the ARPA related distributions.” 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). 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. 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

Matthew A. Kraunelis, Esq. SPR24/0187 Page 3 February 5, 2024 Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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. In its July 31, 2023 response, the Town advised, “Exemption (c) protects both the Executive Summary and the Investigation Report from release.” The Town further asserts that “the status of the Investigation Report as attorney work product or falling within the scope of the attorney client privilege is not relevant to the analysis, as the question of whether the documentation are subject to public dissemination may be (and should be) based exclusively on the application of Exemption (c).” In its July 31, 2023 response, the Town stated that the “Executive Summary and the Investigation Report constitute personnel information the disclosure of which may constitute an unwarranted invasion of personal privacy.” The Town further explained that, “... the documents at issue reach conclusions relative to a municipal employee’s status with the Town. This information is useful for determining whether to terminate the employee. As such, these documents fall within the ‘core category’ of personnel information that has historically been subject to non-disclosure under the Public Records Law.” The Town further asserted, ...the disclosure of the Executive Summary and the Investigation Report would result in personal embarrassment to an individual of normal sensibilities. The complaints raised are very serious and not something that individuals typically want to address in public... Individuals that agreed to be interviewed may also not want it known that they were involved in the matter. Second, both documents contain intimate details of a highly personal nature. As noted the nature of the complaint is highly personal and could significantly impact the reputation of the municipal employee and the complainants by shining

Matthew A. Kraunelis, Esq. SPR24/0187 Page 4 February 5, 2024 them in a negative light. Finally, the information contained in the Executive Summary and the Investigation Report is not available from other sources. The Town further stated, “the public interest in disclosure does not outweigh the privacy interests held by the municipal employee subject to the investigation, the complainants and the interviewees and witnesses.” In camera inspection In order to facilitate a determination as to the applicability of the Town’s claims to withhold the requested records pursuant to Exemption (c) of the Public Records Law, the Town must provide this office with an un-redacted copy of the responsive recording for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay.

Matthew A. Kraunelis, Esq. SPR24/0187 Page 5 February 5, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Allison Jenkins