Russ Williston v. Lancaster, Town of (SPR 20243327)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2024 SPR24/3327 Kathleen Rocco Records Access Officer Town of Lancaster 701 Main Street Lancaster, MA 01523 Dear Ms. Rocco: I have received the petition of Russell Williston appealing the response of the Town of Lancaster (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 22, 2024, Mr. Williston requested, “[a]ny complaints submitted by town employees about Select Board Member … following the September 4th, 2024 Select Board meeting.” Previous Appeals This request was the subject of previous appeals. See SPR24/3020 Determination of the Supervisor of Records (November 15, 2024) and SPR24/3241 Determination of the Supervisor of Records (December 10, 2024). In my December 10th determination, the Town provided a supplemental response on December 9, 2024. Unsatisfied with the Town’s response, Mr. Williston petitioned this office and this appeal, SPR24/3327, 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Kathleen Rocco SPR24/3327 Page 2 December 23, 2024 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 November 7th and December 9th Responses In its November 7, 2024 response, the Town cites Exemption (c) of the Public Records Law for withholding records responsive to Mr. Williston’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 the Town’s November 7, 2024 response, it states: The Town is in possession of five records responsive to your request. For the

Kathleen Rocco SPR24/3327 Page 3 December 23, 2024 reasons stated below, the requested documents are not subject to public dissemination pursuant to Exemption (c) of the Public Records Law, G.L. c. 4, § 7(26)(c)…. [T]he public’s right to view the employee complaints does not outweigh the privacy interest held by the individual employees. First, disclosure of the complaint may result in personal embarrassment to an individual of normal sensibilities. Release of these complaints could impact the complainants’ reputations, labeling them … as one to cast assertions against or criticize management. An individual of normal sensibilities would be embarrassed if such information was released, and their reputation impacted in this way. Second, the materials sought contain intimate details of a highly personal nature. Statements related to one’s reputation have been found to be the type of information which the privacy portion of this exemption is designed to protect. Boston Globe Media Partners, LLC v. Department of Public Health, 482 Mass. 427, 443, n. 17 (2019). As noted above, the release of these complaints could impact the complainants’ reputation, and thus, is highly personal. Third, the information is not available from other public sources. While the public may have an interest in reading the complaints of current employees about their supervisors or appointing authorities, such interest does not outweigh the interest of the individuals at issue…. Requiring the release of employee complaints would have two disastrous consequences. First, if individuals refrained from filing such complaints, it could result in the continuance of a hostile or abusive work environment. It is imperative that public employees feel safe to make a complaint about their fellow employees, including their supervisors. Second, releasing such information could result in a diminished applicant pool. Potential employees would be less likely to apply if they know that certain highly personal information — like complaints about their supervisor — could be released to the public at large upon request. The balance against releasing this information swings even further against public dissemination when considering the potential impacts that would come to the employment environment if such information was released. The public has a strong interest in having a Town Hall with a safe work environment, as well as a competent employee pool. Releasing employee complaints harms this public interest significantly, thwarting the goal of a well-run government. The complaints at issue were filed against a Select Board member. While I recognize that the public has a legitimate interest in learning about the performance of their elected officials, this public interest does not outweigh the privacy interest held by an employee to make a complaint against a superior. These individuals were acting, not as members of the public, but in their capacity as employees when they filed their complaints against Select Board member… As employees they may have a diminished expectation of privacy in their employment environment, but where highly sensitive issues are involved, like job performance and working conditions, the privacy interest at stake outweighs the

Kathleen Rocco SPR24/3327 Page 4 December 23, 2024 public’s desire to review the records. The Public Records Law and the Guide note ‘where exempt information is intertwined with nonexempt information, the non-exempt portions are subject to disclosure once the exempt portions are deleted.’ Guide at 15. However, here it is impossible to redact the requested complaints in a way that would protect the identity of the complainants. The responsive materials contain personally identifiable information about the individual(s) including the performance of their job, their individual employment responsibilities and personal feelings and insight related to their service to the Town of Lancaster. Lancaster is a small community with only 18 employees at the Town Hall campus. The pool of potential complainants is already very narrow. Furthermore, [the requestor is] a long- standing and involved resident, with a deep knowledge of the identity of those within Town Hall. Simply redacting the complainants’ names or positions would not ensure anonymity. Thus, there is no way to redact the complaints in a way that would protect their identity. The entirety of the complaints must be withheld. In the Town’s December 9, 2024 response, it states: The Town continues to assert that no level of redaction would adequately conceal the identity of the authors. As a small community, with only 24 employees outside of public safety and a mere 12 employees working within the administrative arm of the Town, the identity of the author(s) would be obvious to any reader. This is particularly true of [the requestor] as he has been a resident for decades, formally held the position of Planning Board Chair and was a member for many years prior and operates an online news medium where he shares information and opinions about Lancaster…. I can attest to the fact that retaliation, intimidation and ridicule through the use of Public Records [Requests] is very real. In 2023, I received a threatening letter mentioning my home address and children which was placed on my personal vehicle as it was parked at Town Hall, while I was working inside. The Police were called when it was discovered, and an investigation began. Within one business day, [the requestor] submitted a Public Records Request asking for the Police report; the Town obliged. Within hours, [the requestor] posted the matter to his online media forum and to several public Facebook accounts. Soon after, I was exposed to a number of hateful and dismissive comments and reactions from members of the community claiming that I was unfit, too sensitive, etc. It was hostile and completely unwarranted but affected me a great deal. Since then, there have been several other instances of these types of retaliatory actions toward staff I have no doubt that should these confidential complaints be released, even in a redacted form, the outcome will be the same. These were written in good faith and consistent with a long-standing Town policy. They were meant to share personal information and feelings about how

Kathleen Rocco SPR24/3327 Page 5 December 23, 2024 one Select Board Members’ statements affected them personally - they are raw, and they will, if released, cause embarrassment and lead to bullying by those who simply want discredit staff, for whatever reason. These employees trusted the process and policy as outlined to them and, likely, would have made different decisions relative to complaints if they had known their feelings and thoughts would have been a matter for public disclose. Be assured that Town Counsel has been asked to review the policy, written and enacted in 2008, and will propose changes, if necessary, for the board to review. In the meantime, overturning what has been the process for employees since 2008, with no knowledge or ‘heads-up’ to those who submitted complaints expecting anonymity, is punitive, cruel and does nothing to protect them not only as valued members of the team, but as people. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Town to withhold the responsive records, the Town must provide this office with an un-redacted copy of the records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Town’s custody and issue an opinion on the public or exempt nature of the records. 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. Mass. 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.

Kathleen Rocco SPR24/3327 Page 6 December 23, 2024 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: Russell Williston