Holly Cote v. Easthampton, City of (SPR 20251299)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 20, 2025 SPR25/1299 Mary Ann Giza City Clerk City of Easthampton 50 Payson Avenue Easthampton, MA 01027 Dear Ms. Giza: I have received the petition of Holly Cote appealing the response of the City of Easthampton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 18, 2025, Ms. Cote requested “… records related to [an identified individual’s] participation in the recent Chief of Police selection process.” Specifically, Ms. Cote sought: [1] [The identified individual’s] assessment center scores and any evaluator feedback pertaining to [their] performance. [2] [The identified individual’s] official ranking or summary indicating [their] standing among the four candidates evaluated. [3] Documentation outlining the criteria and process used in the final decision- making for the Police Chief position. Any feedback or notes from committee members relating to [the identified individual’s] candidacy. [4] Any Correspondence or memoranda directly referencing [the identified individual’s] candidacy. The City responded on April 28 and May 1, 2025. Unsatisfied with the responses, Ms. Cote petitioned this office and this appeal, SPR25/1299, 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 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

Mary Ann Giza SPR25/1299 Page 2 May 20, 2025 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. Status of the Requestor; Reason for the Request 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of ----------------------- Lexington, 371 Mass. 59, 64 (1976). Therefore, Ms. Cote’s reasons for seeking the responsive records have no bearing on the public status of any existing responsive records. The City’s April 28th and May 1st Responses In its April 28, 2025 response, the City cited Exemption (c) of the Public Records Law to withhold responsive records in their entirety. In its May 1, 2025 response, the City clarified that it was withholding records responsive to Items 1, 2, and 4 in their entirety pursuant to Exemptions (c), (d), and (e) of the Public Records Law. The City further clarified that it was withholding records responsive to Item 3 pursuant to Exemptions (d) and (e) of the Public Records Law. Current Appeal In her May 9, 2025 petition to this office, Ms. Cote contended that both public and private interests favored the disclosure of the responsive records. Ms. Cote further contended that the selection process at issue was no longer ongoing. Exemption (c) Exemption (c) permits the withholding of:

Mary Ann Giza SPR25/1299 Page 3 May 20, 2025 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: (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 May 1, 2025 response, the City stated: While the hiring process is ongoing, the information requested is also subject to “Exemption (c)” which applies to “personnel and medical files or information and any other materials or data relating to a specifically named individual” See M.G.L. c. 4 § 7(26)(c): Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). Releasing information relative to [the identified individual’s] candidacy may, by implication, release information as to other candidates.

Mary Ann Giza SPR25/1299 Page 4 May 20, 2025 Items 1 and 2 Based on the City’s response, and where the records responsive to Items 1 and 2 of the request constitute one of the core categories of personnel information that are useful in making employment decisions regarding an employee, I find that the City has met its burden to withhold such records under Exemption (c). In Colman M. Herman v. City of Boston, et. al., Suffolk Superior Court, Civil Action No. 2384CV2395, the Court in its June 20, 2024 Decision and Order on Plaintiff’s Motion to Compel Public Records Responses, found that “personnel files . . . shall be considered exempt under exemption (c).” Id. at 6. Item 4 However, I find that the City has not met its burden to demonstrate that all correspondence and memoranda directly referencing the identified individual’s candidacy constitute one of the core categories of personnel information that are useful in making employment decisions regarding an employee. The City must clarify this matter. 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). 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). In its May 1st response, the City stated: While the hiring process at issue is ongoing, any other requested information is subject to “Exemption (d)” the Deliberative Process Exemption. See M.G.L. c. 4 § 7(26)(d). For example, releasing information as to [the identified individual’s] ranking or standing among the candidates, coupled with information of how [they] answered specific questions, if known to a continuing candidate, could

Mary Ann Giza SPR25/1299 Page 5 May 20, 2025 afford that candidate insight into the decision-making process and provide an unfair advantage. Release of this information prior to the completion of the hiring process could taint the deliberative process if disclosed at this time … For example, releasing information as to how [an identified individual was] evaluated, if known to a continuing candidate, could afford that candidate insight into the decision-making process and provide an unfair advantage. If you wish to resubmit your Request following the completion of the process, the City will reconsider this decision at that time … If you are requesting copies of the documents [an identified individual] submitted in support of [their] candidacy, or for example an email forwarding such documents to decision makers, please let me know and I will provide those. I do not, however, interpret your Request as seeking this information, but instead as seeking information relative to the deliberate hiring process of the City. As discussed above, such information is not available at this time but may be available once the hiring process is complete. Items 1 and 2 Where for the reasons stated above, the City has met its burden under Exemption (c) to withhold from disclosure records responsive to Items 1 and 2, I find it is unnecessary to opine on the application of Exemption (d) to such records. Items 3 and 4 Based on the City’s response, it is unclear what deliberative process remains ongoing or what legal or policy matters may be involved. Additionally, it is uncertain from the City’s response whether records responsive to Items 3 and 4 are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). The City must clarify these matters. Consequently, I find that the City has not met its burden of specificity to withhold the responsive records in their entirety pursuant to Exemption (d). The City is advised that any information contained in these records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information.

Mary Ann Giza SPR25/1299 Page 6 May 20, 2025 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. In its May 1st response, the City stated: This Request may also violate “Exemption (e)” which allows 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.” See M.G.L. c. 4 § 7(26)(d); see Lambert v. Exec. Dir. of Jud. Nominating Council, 425 Mass. 406, 409 (1997). A decision as to this exemption will be made when or if you resubmit your Request following the conclusion of the search at issue. Items 1 and 2 Where for the reasons stated above, the City has met its burden under Exemption (c) to withhold from disclosure records responsive to Items 1 and 2, I find it is unnecessary to opine on the application of Exemption (e) to such records.

Mary Ann Giza SPR25/1299 Page 7 May 20, 2025 Items 3 and 4 Based on the City’s response, it is unclear whether the responsive records are personal to an employee of the Commonwealth, such as personal reflections or notes created to assist in preparing reports. It is also unclear whether the responsive records have been shared with others. Further, the City has not explained whether the responsive records are maintained as part of a government file. The City must clarify these matters. Additionally, it is unclear from the City’s responses what records it possesses which are responsive to Items 3 and 4 of Ms. Cote’s request. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the City must identify the records in its possession that it is withholding under Exemptions (c), (d), and (e). Conclusion Accordingly, the City is ordered to provide Ms. Cote with a response to the request 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. Cote may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Holly Cote Mark A. Tanner, Esq.