Stephen Darcy v. Marshfield, Town of - (SPR 20250315)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 12, 2025 SPR25/0315 Michael A. Maresco Town Administrator Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Mr. Maresco: I have received the petition of Stephen Darcy appealing the response of the Town of Marshfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 15, 2024, Mr. Darcy requested, “[a]ll emails, text messages and written communications sent to any member of the Board of Public Works or sent by any member of the Board of Public Works related to the pole hearing for Wilson Road. This is to include [a specified private email address]…” Prior Appeals This request was the subject of prior appeals. See SPR24/3219 Determination of the Supervisor of Records (December 11, 2024) and SPR25/0082 Determination of the Supervisor of Records (January 22, 2025). In my January 22nd determination, I found that the Town has a statutory duty to demand delivery of its public records that are outside of its possession. The Town provided a response on February 3, 2025. Unsatisfied with the Town’s response, Mr. Darcy petitioned this office and this appeal, SPR25/0315, 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). 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 A. Maresco SPR25/0315 Page 2 February 12, 2025 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. 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 February 3rd Response In its February 3, 2025 response, the Town provided a record and stated the following: We understand that Mr. Darcy requests emails from a personal Gmail account used by [a named individual], who is an elected board member on Marshfield’s Board of Public Works, pertaining to this request. In response to your letter dated January 30, 2025, enclosed please find the only email, text message, or written communications related to “the pole hearing for Wilson Road” that is in [a named individual]’s possession after a search of his email and text messages, which correspondence was made using his private email account. … it is our position that no responsive public records exist because any emails or other documents drafted by [a named individual] on his personal email account are exempt from public records law under G.L c. 4, § 7, cl. 26(e) as personal notebooks and other materials that are not maintained as part of the files of the governmental unit, and all such correspondence is exempt under [Exemption (d)] as inter-agency or intra-agency memoranda or letters. [A named individual] has never been given a town email address. Mr. Darcy’s search and production of any communications [a named individual] may or may not have sent from his personal email address is an unwarranted invasion of privacy and could also be exempt from the Public Records Law under G.L c. 4, § 7, cl. 26(c). Current Appeal In the appeal petition, Mr. Darcy states, “we have evidence in the form of a second email whereby [a named individual] used his private email to send a message to the private email of the Superintendent of the Department of Public Works concerning a matter before the Board of Public Works. Therefore their claim that this is the only other public records violation is specious… They are pretending to act in good faith by releasing a second email to stop the investigation by claiming that this is the only other email violating public records laws.”

Michael A. Maresco SPR25/0315 Page 3 February 12, 2025 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). 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). 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. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d).

Michael A. Maresco SPR25/0315 Page 4 February 12, 2025 Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein

Michael A. Maresco SPR25/0315 Page 5 February 12, 2025 v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town’s response did not contain the specificity required in a denial of access to public records. The Town merely cites Exemptions (c), (d), and (e) of the Public Records Law without any explanation of its applicability to the responsive records. The Town must provide additional information regarding how the records are exempt from disclosure under the Public Records Law. Conclusion Accordingly, the Town is ordered to provide Mr. Darcy 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. Mr. Darcy 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: Stephen Darcy