Winnie O'Donnell v. Millis, Town of - Town Clerk (SPR 20250111)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 21, 2025 SPR25/0111 Karen Bouret Demarzo Assistant Town Administrator Town of Millis 900 Main Street Millis, MA 02054 Dear Ms. Bouret Demarzo: I have received the petition of Winnie O’Donnell appealing the response of the Town of Millis (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 7, 2025, Ms. O’Donnell requested “[a]ny and all complaints, internal affairs investigation, and disciplinary records regarding [an identified animal control officer], including but not necessarily limited to the May 2008 time period.” The Town provided a response on January 9, 2025. Unsatisfied with the response, Ms. O’Donnell petitioned this office and this appeal, SPR25/0111, 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. 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. 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

Karen Bouret Demarzo SPR25/0111 Page 2 January 21, 2025 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 January 9th Response In its January 9, 2025 response, the Town informed Ms. O’Donnell that it was withholding responsive records pursuant to Exemption (c) of the Public Records Law. Current Appeal In her January 13, 2025 petition to this office, Ms. O’Donnell objected to the withholding of responsive records, characterizing animal control officers as law enforcement officials comparable to police officers. Ms. O’Donnell further stated that records relevant to pending litigation are not exempt from the definition of public records. 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:

Karen Bouret Demarzo SPR25/0111 Page 3 January 21, 2025 (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 January 9th response, the Town informed Ms. O’Donnell: It is the position of the Town that the records you have sought are personnel records that are exempt from disclosure and are exempt from disclosure pursuant to Exemption c as set out below. The Position of the Town is that the documents sought are involved in current litigation and that the discovery procedures available to you in the pending matter should be employed to receive the requested documents … In this instance, the Town has carefully considered the application of Exemption (c) to the records requested, to determine whether disclosure of the information is such that the public’s right to know outweighs any individual(s) privacy rights, and considered the factors set forth in the PETA, cited above. In carefully balancing these interests, the Town has concluded that it is not appropriate to produce the requested documents. The Town has also determined that it would not be possible to redact the document. The text of Exemption (c) “… clearly and unambiguously states that the privacy exemption does not apply to an ‘investigation’ of law enforcement misconduct.” Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1, 11-12 (2024) (the privacy exemption cannot justify the withholding of records related to the investigation of a police shooting by a district attorney). This is true regardless of whether the investigation ends with a finding of police misconduct. Id. Here, the requested records concern “… complaints, internal affairs investigation, and disciplinary records …” related to an identified animal control officer. Where the function of an animal control officer is to enforce laws, rules, and regulations regarding animals, I find that the Town has not demonstrated that the requested records are not related to an investigation of law enforcement misconduct, as contemplated by Exemption (c). Consequently, the Town has not met its burden to withhold the requested records under Exemption (c) of the Public Records Law. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part:

Karen Bouret Demarzo SPR25/0111 Page 4 January 21, 2025 the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In a January 17, 2025 email communication to this office, the Town provided additional context for its claim that the requested records were related to active litigation. The Town stated: The Town dealt with an identical request in 2023 and provided similar responses at that time to the same office making this request. After the town did not produce the documents as part of a public document request, a motion was filed in the district court seeking these records. The request for the subpoena was denied and a later motion for reconsideration was denied. We were not party to the arguments but only received updates from the ADA as to the court’s decision. The town believes that this request pertains to the same case. The case is Commonwealth v Linda Pernice, Wrentham District Court, Docket number 1957-CR-000808, 000684 and 001315. Based on the Town’s response and subsequent clarification—and following a review of the trial court’s docket—it is unclear how the requested records are the subjects of disputes in the pending litigation. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. O’Donnell 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. O’Donnell may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Winnie O’Donnell David C. Jenkins, Esq.