Kevin Wood v. Georgetown, Town of - Town Clerk (SPR 20240404)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 23, 2024 SPR24/0404 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), SPR23/2975 Determination of the Supervisor of Records (December 22, 2023), and SPR24/0081 Determination of the Supervisor of Records (January 24, 2024). In my January 24th determination, I ordered the Town to clarify its claims under Exemption (c) of the Public Records Law and its claims under the Open Meeting Law. Subsequently, the Town responded on February 7, 2024, reiterating its claims for redacting records under Exemption (c) of the Public Records Law, and clarifying what records it is redacting under the Open Meeting Law. See G. L. c. 4, § 7(26)(c); G. L. c. 30A, § 21. Unsatisfied with the Town’s response, Mr. Wood further 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 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 SPR24/0404 Page 2 February 23, 2024 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. 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 February 7th Response In its February 7, 2024 response, the Town cites Exemption (c) of the Public Records Law for redacting the records, and indicates that certain redactions implicate the Open Meeting Law. See G. L. c. 4, § 7(26)(c); see also 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 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

Kerri A. McManus SPR24/0404 Page 3 February 23, 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). 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. Under Exemption (c), the Town argues the following: [T]he redactions protect personnel information, medical information, details of a highly personal nature, and familial matters properly were redacted from Town records pursuant to Exemption (c). G.L. c. 4, § 7(26)(c); People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass 280, 292 (2017). The specific redactions impact the Town’s ability to make personnel decisions, in that they relate to a description of the job duties of current and former Town employees and board members who may have witnessed, reported, confirmed, responded to, or otherwise been affected by the matters raised in the document requests. The redactions discuss matters concerning performance reviews and personnel actions of current and former employees and officials, and impacts the Town’s policy regarding the use of certain information in making employment decisions under those processes. This information very plainly impacts the Town’s ability to make its employment decisions. Indeed, as you can tell from the documents, they are copied to the “personnel file” of particular employees. It is noteworthy here that the entire file is not withheld; only minor redactions of names, positions, and substantive employment information contained throughout the files. Accord Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 386 (2002) (“What is critical is the nature or character of the documents, not their label.”). Additionally, this information is not available from other sources, rendering the privacy interest likely to outweigh the public's right to know what is contained in the personnel records. Cf. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 157 (1979) (“the seriousness of any invasion of privacy resulting from disclosure of the records ... is reduced since substantially the same information is available from other sources”). The reports also contains information, which, should not be made public to the extent it may discourage such reporting by others in the future

Kerri A. McManus SPR24/0404 Page 4 February 23, 2024 if it were made public. Where it would impact the Town’s ability to function as an effective employer were the personnel files, disciplinary comments, and reports regarding current and former Town employees and officials to be released in their entirety, and would impact the privacy interests of persons of normal sensitivity contained within those files, the Town carefully has determined that the privacy interests do not outweigh the public's right to know such information. As such, the redactions are appropriate under the PETA balancing test. 477 Mass at 292. In this case, the Department has provided segregable portions of the responsive records, and has explained that the individuals identified in the redacted portions of the records have a privacy interest under Exemption (c). Consequently, I find that the Department has met its burden to redact the responsive records under Exemption (c). Open Meeting Law The Town’s February 7th response, along with Mr. Wood’s appeal petition, also raises issues potentially related to the Open Meeting Law (OML). See G. L. c. 30A, § 22(f). Specifically, in its February 7th response, the Town indicates that while “several redactions implicate both” Exemption (c) and the OML, the redactions on three pages of the responsive records “specifically relate to” OML. Given that the redactions described above are based on the Open Meeting Law, and 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. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Wood is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Kevin Wood