Susan Delmolino v. Hadley, Town of - Town Clerk (SPR 20242961)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2024 SPR24/2961 Jessica Spanknebel Town Clerk Town of Hadley 100 Middle Street Hadley, MA 01035 Dear Ms. Spanknebel: I have received the petition of Susan Delmolino appealing the response of the Town of Hadley (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2024, Ms. Delmolino requested the following records: 1. [an identified individual’s] most recent contract since taking the [Town Administrator (TA)] position and any other materials related to that hiring and contract[;] 2. [an identified individual’s] resignation letter from her post as TA and any other materials related to that resignation, including but not limited to, the exit compensation package[;] 3. [an identified individual’s] letter requesting to be considered for TA and any other materials related to that request[;] 4. [an identified individual’s] resignation letter(s) and any other materials related to that resignation from Planning and associated committees[;] 5. Any Executive Session minutes related to the above requests. The Town provided responses on October 17, 2024 and October 28, 2024. Unsatisfied with the Town’s responses, Ms. Delmolino petitioned this office and this appeal, SPR24/2961, 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

Jessica Spanknebel SPR24/2961 Page 2 November 14, 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. G. L. c. 66, § 10(b)(iv); 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). 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 17th and October 28th Responses In its October 17, 2024 response, the Town provided Ms. Delmolino with records responsive to Request #1, Request #2, and Request #4. The Town advised Ms. Delmolino that the Town Select Board was likely in possession of additional documents responsive to Request #2, Request #3, and Request #5. In its initial October 28, 2024 response, the Town provided an additional record responsive to Request #2. The Town cited Exemption (c) of the Public Records Law in support of the redactions to this record. The Town further cited Exemption (a) of the Public Records Law and the Open Meeting Law to withhold records responsive to Request #5. In its subsequent October 28, 2024 response, the Town provided Ms. Delmolino with a record responsive to Request #3. Current Appeal In her October 30, 2024 petition to this office, Ms. Delmolino objected to the redaction of records responsive to Request #2, claiming that an unredacted version had been released to “… many other people.” Ms. Delmolino further objected to the withholding of documents responsive to Request #5 and claimed that the Town was in possession of additional records responsive to Request #3, namely “… correspondence relating to [the identified individual’s] withdrawal of [her employment] application.” Request #5 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute

Jessica Spanknebel SPR24/2961 Page 3 November 14, 2024 G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its October 28th response, the Town cites G. L. c. 30A, § 22(f), pursuant to Exemption (a), to justify the withholding of records responsive to Request #5. G. L. c. 30A, § 22 provides in pertinent part: if an executive session is held pursuant to clause (2) or (3) of subsections (a) of section 21, then the minutes, preparatory materials and documents and exhibits used at the session may be withheld from disclosure to the public in their entirety, unless and until such time as a litigating, negotiating or bargaining position is no longer jeopardized by such disclosure, at which time they shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure. G. L. c. 30A, § 22. In its October 28th response, the Town states: Here, any executive session the Select Board held to discuss the former TA’s resignation were for Purpose 2, contract negotiations with nonunion personnel, and for Purpose 7, complying with general law, specifically the personnel records exemption of the Public Records Law. Id. § 21. Since the executive session purposes are functionally the same as Public Records Law exemption for personnel records, namely to avoid a disclosure which would constitute unwarranted invasion of privacy, publishing the minutes from those executive session minutes would constitute an invasion of privacy and defeat that purpose.

Jessica Spanknebel SPR24/2961 Page 4 November 14, 2024 The Town’s responses and Ms. Delmolino’s appeal petition raise several issues related to the Open Meeting Law, rather than the Public Records Law. See G. L. c. 30A, § 22(f). Given that the interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address those issues in this determination. See G. L. c. 30A, § 23. I encourage the parties to contact the Office of the Attorney General for a determination on the status of any executive session minutes. Request #2 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). 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 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

Jessica Spanknebel SPR24/2961 Page 5 November 14, 2024 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 initial October 28, 2024 response, the Town states: First, releasing that information would result in personal embarrassment because this information is a private matter, specifically called out in the exemption. Second, information is exactly the type of intimate detail of a highly personal nature that the privacy exemption protects. And third, the substantive information that the former TA resigned is available from other sources. But the other private information is not available from other sources, heightening the privacy interest. In sum, these three factors raise a very high privacy interest that outweighs the public’s interest in learning that information. Based on the Town’s response, it is unclear how the redacted information constitutes one of the core categories of personnel information contemplated by Exemption (c) of the Public Records Law. Additionally, while the redacted information is not available from other sources, it is unclear how the redacted information constitutes intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. The Town must clarify these matters. Request #3 Further, based on Ms. Delmolino’s petition, it is unclear whether the Town possesses additional records responsive to Request #3. Specifically, it is not clear whether the Town possesses correspondence related to the identified individual’s withdrawal of her employment application. 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). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. Delmolino with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Delmolino may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1).

Jessica Spanknebel SPR24/2961 Page 6 November 14, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Susan Delmolino