Allison Jenkins v. Reading, Town of - Town Clerk (SPR 20241049)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 23, 2024 SPR24/1049 Laura A. Gemme Town Clerk Town of Reading 16 Lowell Street Reading, MA 01867 Dear Ms. Gemme: 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, Reconsideration and In Camera review The requested records were the subject of prior appeals, a subsequent reconsideration and an in camera review. See SPR23/1424 Determination of the Supervisor of Records (July 6, 2023); SPR23/1552 Determination of the Supervisor of Records (July 18, 2023); SPR23/2730 Determinations of the Supervisor of Records (November 22, 2023 and January 16, 2024); and SPR24/0187 Determinations of the Supervisor of Records (February 5, 2024 and March 7, 2024). In my March 7th determination, I found that the Town had met its burden in withholding the Investigative Report, in its entirety, under Exemption (c). With regard to the Investigative Summary, I found that although portions of the records may fall under Exemption (c) of the Public Records Law, the Town had not met its burden to withhold the Executive Summary in its entirety. On March 15, 2024, the Town provided a response. Unsatisfied with the response, Ms. Jenkins petitioned this office and this appeal, SPR24/1049, was opened as a result. 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

Laura A. Gemme SPR24/1049 Page 2 April 23, 2024 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(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 March 15th Response In its March 15, 2024 response, the Town cited Exemption (c) of the Public Records Law to redact portions of the Executive Summary. Current appeal In her appeal, Ms. Jenkins asserted, “I would like to state that I believe I should have received the entire report, what was sent to me is absurd. . . .At the very least I feel the last sentence should not have been redacted.” 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

Laura A. Gemme SPR24/1049 Page 3 April 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. 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). 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 response the Town advised, Although the Town recognizes that the public has an interest in understanding the operations of municipal government, given the above, the balance in this case, swings in favor of non-disclosure of the redacted information. The Town has also withheld the employment status of the complainants. Revealing the employment status of the complainants may reasonably lead to their identification. Municipal employees should have an expectation of privacy when it comes to filing complaints, especially complaints against their supervisors. If a complainant’s identity could be released or discovered through a public records request, it would have a significant chilling effect on an individual’s willingness to come forward.

Laura A. Gemme SPR24/1049 Page 4 April 23, 2024 Finally, the Town cannot merely redact the name of the municipal employee and release the results of the investigation to you. You worked in Town Hall during this time and, on information and belief, know the identity of the municipal employee subject to the complaints, as well as the identity of the complainants. Redacting only the employee’s name would not adequately protect the privacy interests at hand. See Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983) (“The inquiry as to what constitutes identifying information regarding an individual who has been granted a pension must be considered not only from the viewpoint of the public but also from the vantage of those who are familiar with the individual and his career.”). Based on the in camera review of responsive records, coupled with the Town’s provision of responsive records in redacted form, I find that the Town has met its burden to redact portions of the Executive Summary pursuant to Exemption (c) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Jenkins 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 of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Allison Jenkins