Dawn Padovani v. Carver, Town of - Town Clerk (SPR 20241874)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 12, 2024 SPR24/1874 Shelby Roy Procurement and Purchasing Coordinator Administrative Assistant Carver Town Hall 108 Main Street Carver, MA 02330 Dear Ms. Roy: I have received the petition of Dawn Padovani appealing the response of the Town of Carver (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 17, 2024, Ms. Padovani requested: [1] …a copy of [an identified individual]’s final determination regarding the harassment investigation that involves [two identified individuals]…. [2] …the final invoice and the total dollar amount the Town spent on the investigation. The Town provided a response on May 22, 2024, asserting Exemption (c) of the Public Records Law to withhold Item 1 of the request. Unsatisfied with the Town’s response, Ms. Padovani petitioned this office and this appeal, SPR24/1874, was opened as a result. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Padovani’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Shelby Roy SPR24/1874 Page 2 July 12, 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. See 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 May 22nd response In its May 22, 2024 response, the Town cited Exemption (c) of the Public Records Law to withhold the investigation report responsive to Item 1 of the request. See G. L. c. 4, § 7(26)(c). The Town did not address Item 2 of the request in its response. Item 1 Current Appeal In her appeal, with respect to Item 1 of the request, Ms. Padovani stated: For the Town to refuse to disclose this report is an abuse of Exception (c). That exception was crafted to protect an employee’s “personal privacy”, but here the records generated relate to these employee’s public conduct. The alleged incidents of in-person harassment occurred in the public COA building in view of other members of the public and were allegedly suffered by public employees in the course of their duties. We also understand that the Director complained about certain posts of ours criticizing her on a Facebook group. No reasonable person would have an expectation of privacy in investigatory documents produced in the course of such an investigation. These are not intimate details of a highly personal nature…. As we were the subjects of the investigation, if anything our rights to the results are greater than an uninvolved member of the public. We do not know what other allegations may have been made against us, who made those

Shelby Roy SPR24/1874 Page 3 July 12, 2024 allegations, and what was said regarding those allegations. It would be unfair to allow a public employee the opportunity to smear our reputations while hiding behind Exception (c) to protect her own. 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). 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 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

Shelby Roy SPR24/1874 Page 4 July 12, 2024 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 May 22, 2024 response, with respect to Item 1 of the request, the Town asserted: Please be advised the requested investigation report you have requested is personnel file/information and contain materials relating to specifically named individual(s), the disclosure of which may constitute an unwarranted invasion of personal privacy. Therefore, the record is exempt from disclosure pursuant to G.L. c. 4, § 7(26)(c). Please note that while there are other specifically named individuals within the report, neither [of the two individuals identified in the request] are named and/or identified in the report. Based on the Town’s response, it is unclear how the record constitutes one of the core categories of personnel information that is useful in making employment decisions regarding an employee. Further, it is uncertain how the record, in its entirety, contains intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. At 292. Further, the Town did not provide information with respect to examining whether the public interest in obtaining the requested record outweighs the seriousness of any invasion of privacy. Id. Further it is unclear if the Town could provide segregable portions of the responsive record. 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. Item 2 The Town did not address Item 2 of the request in its May 22nd response. Current Appeal In her appeal, Ms. Padovani stated: We have also requested copies of the invoices … because we would like to know how much the Town spent investigating allegations which some may consider petty or ridiculous. [In response to separate February 22 and February 27 public records requests made to the Town], [w]e have been given invoices that have been substantially redacted and have demanded unredacted copies…. Those demands have not been addressed. The total amounts charged to the Town have not been disclosed and the redactions, sometimes encompassing whole pages of billing, do not permit anyone to determine how much actual time was spent on the investigation, what tasks were performed in furtherance of the investigation and

Shelby Roy SPR24/1874 Page 5 July 12, 2024 how much the Town paid for the investigation. Possession, Custody or Control; Records in Existence The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the information provided in Ms. Padovani’s appeal petition, it is unclear if the Town possesses records responsive to Item 2 of the request. If the Town does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the Town is ordered to provide Ms. Padovani 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. Ms. Padovani may appeal the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Dawn Padovani