Martha Barrows v. Randolph, Town of - Town Clerk (SPR 20242783)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 22, 2024 SPR24/2783 Cheryl Sass Town Clerk & Registrar Town of Randolph 41 South Main Street Randolph, MA 02368 Dear Ms. Sass: I have received the petition of Martha Barrows appealing the response of the Town of Randolph (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 14, 2024, Ms. Barrows requested, “[e]mail communications to [an identified individual] [at a specified email address] from the following [four identified email] accounts, during the listed time frames.” Previous Appeals The request was the subject of previous appeals. See SPR24/2270 Determination of the Supervisor of Records (August 23, 2024) and SPR24/2557 Determination of the Supervisor of Records (September 23, 2024). In my September 23rd determination, it was my understanding that the Town would provide a further response to Ms. Barrows. The Town responded on October 4, 2024. Unsatisfied with the Town’s response, Ms. Barrows petitioned this office and this appeal, SPR24/2783, 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). 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. 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

Cheryl Sass SPR24/2783 Page 2 October 22, 2024 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 October 4th Response In its October 4, 2024 response, the Town identified “emails sent to [an identified individual] from four different email addresses.” The Town further stated that it withheld five emails pursuant to Exemption (c) and one email pursuant to Exemption (n) of the Public Records Law. Current appeal In her October 8, 2024 appeal, Ms. Barrows asserts, “[i]n my letter of September 6th (as attached to my September 10 appeal), I assert there are emails being withheld which could be provided with redactions.” Ms. Barrows also asserts: I continue to seek a copy of the thread of two emails in which employees made complaints regarding another employee. The Town has not shown any reason why that document cannot be provided with redactions, I continue to seek a copy of the email discussing statements made at an executive session regarding the reputation and character of a specific employee. The Town has not shown the reason why that email and its attachments cannot be provided with redactions. In my September 6th email to the Town (as included in my September 10 appeal), I also note there are other emails that I know to have been withheld, which have not been identified. I can specifically identify one of those emails dated June 7, 2024 with a subject matter of “Plant Coverage for the Near Future”. I requested that email and any attachments be provided to me, or that it be properly identified with the reason it was withheld. 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.

Cheryl Sass SPR24/2783 Page 3 October 22, 2024 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 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 explains that, “... the first two emails in which complaints are made about an employee contain allegations of a personal nature which would bear directly on the reputation of the individual being complained about. One email discussing statements made at an executive session regarding the reputation and character of a specific employee; similarly the third email discusses a specific individual and that individual’s character, and the last two emails discuss the reason for termination of an employee and bear directly on that employee’s character and reputation. The Town has thus determined that the privacy interests of the named individuals outweighs any public interest.”

Cheryl Sass SPR24/2783 Page 4 October 22, 2024 Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist would find useful to maximize damage.” PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[because the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA at 290. In its response, the Town states, “[t]he email withheld ... contains detailed information regarding how an unauthorized person was able to access a Town-operated facility, thereby providing information as to how another person might be able to access such facility... providing such information to the public is reasonably likely to jeopardize public safety as unauthorized persons could use that information to access the facility and cause harm.”

Cheryl Sass SPR24/2783 Page 5 October 22, 2024 In camera inspection In order to facilitate a determination as to the applicability of the Town’s Exemptions (c) and (n) claims to withhold the requested emails, the Town must provide this office with the withheld responsive records for in camera inspection. After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. 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. Sincerely, Manza Arthur Supervisor of Records cc: Martha Barrows