Christopher Rizzo v. Seekonk, Town of - Town Clerk (SPR 20251031)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 28, 2025 SPR25/1031 Shawn E. Cadime Town Administrator Town of Seekonk 100 Peck Street Seekonk, MA 02771 Dear Mr. Cadime: I have received the petition of Christopher Rizzo appealing the response of the Town of Seekonk (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 20, 2025, Mr. Rizzo requested the following: Reviews going back to 2022 for the following town officials. In the case of a committee review I would like the review of each committee member: [1] Town Administrator [2] Police Chief [3] Fire Chief [4] Library Director [5] Human Services Director [6] DPW Superintendent [7] Town Planner [8] Communications Director [9] Animal Control Officer [10] Veterans Agent [11] Director of Finance [12] Parks and Rec Director [13] Emergency Management Director Previous Appeal The requested records were the subject of a previous appeal. See SPR25/0801 Determination of the Supervisor of Records (April 3, 2025). In my April 3rd determination, I ordered the Town to clarify its claims under Exemption (c) of the Public Records Law. 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

Shawn E. Cadime SPR25/1031 Page 2 April 28, 2025 Subsequently, the Town responded on April 7, 2025. Unsatisfied with the Town’s response, Mr. Rizzo petitioned this office and this appeal, SPR25/1031, 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 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 his appeal, Mr. Rizzo contests the Town’s claim of Exemption (c) to withhold review records responsive to the eleven (11) officials described in the Town’s response, as described above. Mr. Rizzo further claims, “the records [the Town] provided . . . falls short of the three years requested.” The Town’s April 7th Response In its previous response, the Town cited Exemption (c) of the Public Records Law to withhold the responsive records in their entirety. In its April 7, 2025 response, the Town provided records responsive to Items 1 and 4 of the request and cited Exemption (c) to withhold the remaining responsive 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.

Shawn E. Cadime SPR25/1031 Page 3 April 28, 2025 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. 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). 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). This exemption requires 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 April 7th response, regarding Items 1 and 4 of the request, the Town provided responsive records and stated as follows: With regard to the Town Administrator and Library Director . . . performance evaluations have been prepared by each member of the Select Board and Board of Library Trustees, respectively, and then staff members prepare a written “composite” evaluation (without attribution of individual member’s comments) that is used during an open session. These composite evaluations used in open session are subject to disclosure. Copies of responsive composite evaluations regarding the Town Administrator and Library Director during the requested time frame are enclosed herewith. Where Mr. Rizzo indicates in his appeal that “the records [the Town] provided . . . falls short of the three years requested[,]” upon review of the file, regarding Items 1 and 4 of the request, it is my understanding that the Town provided responsive records for the years 2022,

Shawn E. Cadime SPR25/1031 Page 4 April 28, 2025 2023, and 2024 in its April 7, 2025 response. Therefore, I find that the basis of Mr. Rizzo’s appeal regarding Items 1 and 4 is unclear. Mr. Rizzo is reminded that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). If Mr. Rizzo seeks an additional record other than what has been provided, he is advised to clarify the requested records or submit a public records request that reasonably describes the records sought to enable the Town identify the record(s). Once clarification has been provided or a request has been submitted, the Town must provide a response. Regarding Items 2, 3, and 5 through 13 of Mr. Rizzo’s request, the Town advised the following in its April 7th response: In accordance with exemption (c) [G.L. c.4, §7(26)(c)], all of the records requested are absolutely exempt from disclosure, with the exception of composite evaluations that were prepared for the Town Administrator and Library Director and used during open sessions, see below – copies of said records are enclosed herewith. . . . The first clause of exemption (c), which is the only clause relevant here, covers personnel (and medical) records and information. The Massachusetts Supreme Judicial Court (“SJC”) has defined personnel records to include any records that would be helpful in making determinations regarding hiring and firing. Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). . . . Such records are “absolutely exempt from disclosure,” as non-disclosure protects “the government’s ability to function effectively as an employer.” Id. at 799, 802; see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983); Brogan v. School Committee of Westport, 401 Mass. 306, 308 (1987). As the SJC in Wakefield Teachers Association noted, “[d]isclosure of this sensitive and careful investigation and analysis would make the same kind of investigation and analysis difficult, if not impossible, in the future.” Id. at 802. See also People for the Ethical Treatment of Animals v. Dep’t of Agricultural Resources, 477 Mass. 280, 282 (2017)(“Exemption (c) concerns records related to privacy. It permits a records custodian to withhold an otherwise public record if it is a personnel or medical file, or if it relates to a specifically named individual and its disclosure may constitute an unwarranted invasion of personal privacy.”) (emphasis added). In your March 22nd correspondence to the Supervisor, you reference the Town’s reliance on the Wakefield Teachers Association case and claim that the Town did not perform an “individualized assessment” of the reviews to see if disclosure would constitute “an unwarranted invasion of personal privacy” as to the department heads. As Wakefield and subsequent court decisions have held, however, exemption (c) has two parts, and “personnel and medical files” are

Shawn E. Cadime SPR25/1031 Page 5 April 28, 2025 absolutely exempt. Therefore, there is no need for individualized assessment as to “privacy” issues regarding employee performance reviews. I note further that there is no public evaluation performed for any of the thirteen officials you requested other than the Town Administrator and the Library Director. For the other eleven officials, their performance review records are “personnel files” and exempt, and copies shall not be produced. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claims made by the Town to withhold responsive records, the Town must provide this office with un- redacted copies of the records responsive to Items 2, 3, and 5 through 13 of the request 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. Order Accordingly, the Town is ordered to provide this office with un-redacted copies of the responsive records regarding Items 2, 3, and 5 through 13 of the request for in camera inspection without delay.

Shawn E. Cadime SPR25/1031 Page 6 April 28, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Christopher Rizzo