Karen Drane v. Norton, Town of - Town Manager (SPR 20242962)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 13, 2024 SPR24/2962 Michael Yunits Town Manager Town of Norton 72 East Main Street Norton, MA 02766-2310 Dear Mr. Yunits: I have received the petition of Karen Drane appealing the response of the Town of Norton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 10, 2024, Ms. Drane requested: [1] A formal written complaint by the former town clerk … to the Town Manager … in June 2024, that outlines an interaction between the former town clerk and the chair of the select board … in which the chair of the select board used a gender specific slur word in relation to a female townsperson, while in the former town clerk’s office. The former town clerk wrote the letter to report the interaction to the town manager as a code of conduct violation. [2] [A]ny communication from the Town Manger to any town employee, elected official, or townsperson related to this formal complaint. The Town responded on October 25, 2024, providing the requested record for Item #1 with one word redacted under Exemption (c) of the Public Records Law. Unsatisfied with the Town’s response, Ms. Drane appealed, and this case, SPR24/2962, was opened as a result. Status of Requestor In her appeal petition, Ms. Drane states, “I have reason to believe I am the townsperson referenced in that letter.” 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, 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

Michael Yunits SPR24/2962 Page 2 November 13, 2024 371 Mass. 59, 64 (1976). Accordingly, Ms. Drane’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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. 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. Current Appeal In her appeal, Ms. Drane states, “[i]f I am the individual listed, this information would not result in personal embarrassment. I believe it is the person using the vulgar word and not the person being called that word, who should be embarrassed…. Regarding the second request … In the state and municipal records retention schedule, it states that the Town of Norton should be retaining the following: calendars and schedules, general administrative correspondence, email correspondence … meeting notes, staff and administrative meeting records, personnel files … That communication would include emails, phone call logs, and any written correspondence.” She continues, “[g]iven the records retention requirements, it would seem that the [T]own should have some documentation related to this written formal complaint. The Select Board chair writes in a statement … that he spoke with the Town Manager regarding the written complaint. There should be a record and documentation of that meeting, whether this is in the form of notes and/or a scheduled meeting on a calendar. There should be a record of a response to the former town clerk, after she submitted the formal complaint. Either the [T]own has these documents and are not providing them, or they are negligent in documenting and retaining records.”

Michael Yunits SPR24/2962 Page 3 November 13, 2024 The Town’s October 25th Response Item 1 In its October 25, 2024 response, the Town cites Exemption (c) of the Public Records Law for redacting the record responsive to Ms. Drane’s request. See G. L. c. 4, § 7(26)(c). 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. 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 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 October 25th response, the Town states, “the identity of the social media account holder that the alleged comment was in reference to could result in personal embarrassment for that account holder if it were to be publicly disclosed. The redacted information relates to a third party whose identity has not been otherwise publicly disclosed and concerns details of a highly personal nature. Where the specific identity of the account holder is not a critical component of the complaint itself or the issue that it raises, the account holder’s privacy interests outweigh those of the general public. As such, that information has been redacted from the requested document pursuant to exemption (c) of the Public Records Law.”

Michael Yunits SPR24/2962 Page 4 November 13, 2024 Based on its response, the Town has met its burden in redacting the responsive records. Item 2 In the Town’s October 25th response, it states that it “does not possess any documents that are responsive to the portion of your request that seeks ‘any communication from the Town Manger to any town employee, elected official, or townsperson related to this formal complaint.’” Based on the Town’s response, in conjunction with Ms. Drane’s appeal, it is unclear if the Town possesses additional records responsive to the request. 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. Conclusion Accordingly, the Town is ordered to provide Ms. Drane 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. Drane may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Karen Drane