Joan F. Blake v. Berkley, Town of - Town Clerk (SPR 20242652)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 4, 2024 SPR24/2652 Heather J. Almy Town Clerk Records Access Officer Town of Berkley One North Main Street Berkley, MA 02370 Dear Ms. Almy: I have received the petition of Joan Blake appealing the response of the Town of Berkley (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 31, 2023, Ms. Blake requested a “[c]opy of a report generated by Town Counsel including summaries of interviews with two elected officials having a dispute, which I am named.” Prior Appeals and In camera review The requested records were the subject of prior appeals and an in camera review. See SPR23/2935 Determination of the Supervisor of Records (December 19, 2023); SPR24/1006 Determinations of the Supervisor of Records (April 17, 2024 and May 8, 2024) and SPR24/2310 Determination of the Supervisor of Records (August 28, 2024). In my August 28th determination, it was my understanding that the Town intended to provide a further response to Ms. Blake. The Town responded on September 18, 2024. Unsatisfied with the response, Ms. Blake petitioned this office and this appeal, SPR24/2652, 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 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

Heather J. Almy SPR24/2652 Page 2 October 4, 2024 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 September 18th response In its September 18th response, the Town cited Exemption (c) to redact certain portions of the requested records. Current appeal In her appeal, Ms. Blake opines, “I would like to yet again file an appeal and request a copy of the report that shows my name and what exactly was said about me.” 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.

Heather J. Almy SPR24/2652 Page 3 October 4, 2024 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 asserted: Here, certain portions of the responsive records contain details of a personal dispute between two elected Town employees that could have resulted in disciplinary action. This falls squarely within the protected personnel information set forth in Worcester Telegram and Wakefield Teachers Association. In addition, the private interest in withholding this protected information outweighs the public’s interest in disclosure. First, the redacted information is not available from any other source as it is the result of an internal and confidential investigation. Second, the redacted information contains intimate details of a highly personal nature, as they concern a personal dispute that spilled over into the workplace, which would embarrass an individual of normal sensibilities, let alone an elected Town official. Based on the Town’s response, and upon review of the records in camera, I find that the Town may permissibly redact the responsive records under Exemption (c). Conclusion Accordingly, I will consider this administrative appeal closed. Ms. Blake is advised that this office shares jurisdiction with the Superior Court. See G. L. c. 66, § 10A(c).

Heather J. Almy SPR24/2652 Page 4 October 4, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Joan Blake