Cory Bombredi v. Phillipston, Town of (SPR 20251303)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 22, 2025 SPR25/1303 Adam Lamontagne Chief Administrative Officer Town of Phillipston 50 The Common Phillipston, MA 01331 Dear Mr. Lamontagne: I have received the petition of Cory Bombredi appealing the response of the Town of Phillipston (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2025, Mr. Bombredi requested: [1] Payroll records for [an identified individual] between September 1, 2019, and his retirement from the town of Phillipston, MA. [2] A copy of the fire department study referenced in the August 14, 2019, Select Board meeting. [3] A final copy of the investigation report produced by [an identified individual’s] investigation into the Fire Department after ongoing internal reports of missing equipment, missing files and altered reports. [4] A list of employees between the months of July 2019 and April 2020 that were out on administrative leave or investigatory suspension. On January 13, 2025, Mr. Bombredi modified the first item of his request to seek “payroll records to reflect the dates of September 1, 2018, to [an identified individual’s] retirement for ‘medical reasons.’” Previous Appeals This request was the subject of previous appeals. See SPR25/0278 Determination of the Supervisor of Records (January 31, 2025); SPR25/0485 Determination of the Supervisor of Records (March 4, 2025) and SPR25/0965 Determination of the Supervisor of Records (April 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

Adam Lamontagne SPR25/1303 Page 2 May 22, 2025 24, 2025). In my April 24th determination, I ordered the Town to clarify its claims for withholding records responsive to Items 3 and 4 of the request pursuant to Exemption (c) of the Public Records Law. Subsequently, the Town responded on May 7, 2025. Unsatisfied with the Town’s response, Mr. Bombredi petitioned this office, and this appeal, SPR25/1303, 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. 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. Mr. Bombredi’s March 2nd Request In his appeal petition, Mr. Bombredi states the following: Item #5 – Massachusetts State Police Investigation Report On March 2, 2025, I submitted a formal public records request directly to the Town of Phillipston for a copy of the Massachusetts State Police report cited by Interim Town Administrator Peter Morin in emails dated February 18 and February 27, 2025. The Town cited this report as justification for withholding the Flick report. To date, the Town has failed to acknowledge or respond to that request. Because this report is central to the Town’s reasoning in denying access to a separate public record, I respectfully request that the Supervisor: • Include this request in the current appeal, • Direct the Town to produce the report. In an email to this office on May 16, 2025, Mr. Bombredi reiterates his concerns about his March 2nd request. Please be advised that if Mr. Bombredi is unsatisfied with the Town’s response, or failure

Adam Lamontagne SPR25/1303 Page 3 May 22, 2025 to respond, to his March 2nd public records request, he may appeal that response separately within ninety (90) days. See 950 C.M.R. 32.08(1). The Town’s May 7th Response In its May 7, 2025 response, the Town indicates that it previously provided records responsive to Item 1, provides a record responsive to Item 2, and cites Exemption (c) of the Public Records Law for withholding records responsive to Items 3 and 4. See G. L. c. 4, § 7(26)(c). Items 1 and 2 In its May 7th response, the Town explains that “the Town has already produced any responsive records in its possession for Item 1 and we located a fire department study done with Templeton that [Mr. Bombredi] could be referencing.” In his appeal petition, Mr. Bombredi argues the following: Item #1 – Payroll Records The Town provided a file titled “FIPA payroll stevens (1).pdf”, which appears to be a summary generated from internal payroll software. However, my original request was for actual payroll records routinely maintained by the Town, not a custom-generated report created after the fact. When I requested “payroll records for Fire Chief Richard Stevens,” I meant records that already exist in the Town’s custody, including: • Weekly or biweekly pay stubs or payroll distribution records, • Payroll register or warrant entries, • Weekly time sheets or attendance logs, • Any payroll reports submitted to or retained by the Treasurer, Accountant, or Town Administrator. Records in Existence; Possession, Custody or Control Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Where the Town has confirmed that it provided all records in its possession responsive to Items 1 and 2 of the request, I find that this portion of Mr. Bombredi’s appeal is resolved.

Adam Lamontagne SPR25/1303 Page 4 May 22, 2025 Items 3 and 4 In his appeal petition, Mr. Bombredi argues the following: Item #3 – The John Flick Investigative Report After initially claiming the report could not be located, the Town’s May 7 response acknowledged its existence but asserted it is “absolutely exempt” under Exemption (c). The Town also stated that the report was prepared by special counsel but declined to fully assert attorney-client privilege. . . . Item #4 – List of Employees on Administrative Leave The Town has not produced this list and offers no individualized justification for withholding it. Public agencies routinely disclose the existence and dates of administrative leave or suspension, particularly in public safety departments. Names may be redacted. This item remains unfulfilled. 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). 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

Adam Lamontagne SPR25/1303 Page 5 May 22, 2025 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 7th response, under Exemption (c), the Town argues the following: Here, without waiving the Town’s rights with respect to the confidentiality of such material, the Town briefly notes that the records requested include an investigatory report into management practices and other hiring, promotional, and resignation issues arising in the Fire Department, which report relied heavily on confidential documents obtained from various employees’ personnel files, discusses certain employment decisions that were made, discusses information contained in personnel files throughout the report, such as interview scoring summary sheets and complaints received, attaches confidential documentation relied on as exhibits to the report, and which ultimately summarizes certain employment decisions made by the Town, including without limitation who was put on administrative leave and why. Accord Wakefield Teachers Ass’n, 431 Mass. at 798 (“disciplinary documentation” such as investigatory report of teacher’s misconduct, was exempt from disclosure). The Town’s disclosure of such information would hinder its ability to function effectively as an employer, including with respect to its ability to investigate employees, investigate allegations of misconduct, and to make disciplinary decisions concerning said employees based on independent reports it commissions. As such, the documents are permitted to be withheld as they involve personnel matters and misconduct or mismanagement investigations forming the basis for certain employment decisions made by the Town. Accord Wakefield Teachers Ass’n, 431 Mass. at 798 (information that is “useful in making employment decisions regarding an employee” is “absolutely exempt from disclosure”). Further, the requested records contain “other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” In this respect, the Town has again undertaken a further thorough analysis of the three factors articulated by the Court in PETA, 477 Mass. at 292. First, the Town believes that disclosure of the report would result in personal embarrassment to the various individuals of normal sensibilities, as there are allegations of highly personal matters relating to the reputation of various individuals, including the propriety of certain business decisions, relationships between employees, familial relationships, potential conflicts of interest, and other such matters. Id. (Exemption (c) protects from

Adam Lamontagne SPR25/1303 Page 6 May 22, 2025 public disclosure a variety of personal information, including, inter alia, “reputation”). Second, because the information contained in the investigative report contains highly intimate details concerning several individuals, including with respect to categories of information the courts have already determined are not subject to disclosure (such as personnel information, disciplinary records, and decisions on which demotion or termination decisions may have been made), the Town believes it could be at risk of liability under G.L. c.214, §1B should it interfere with these named-individuals’ right to privacy in said information. The conclusions and specific details gathered for the report and disclosing them would interfere with the Town’s ability to conduct such investigatory reports in future circumstances, as witnesses and complainants may be less likely to cooperate in providing information if it is not kept confidential. In this instance, based on the Town’s individualized review of the records sought, the Town has carefully considered whether the investigatory report and list of employees is such that the public’s right to know outweighs any individual employee(s)’ privacy rights, and considered the factors set forth in the PETA case, cited above. After this careful review, the Town has determined that the requested documents will be withheld pursuant to Exemption (c) as the record contains confidential personnel information regarding certain specifically identified current and former employees, the disclosure of which may constitute an unwarranted invasion of personal privacy. Finally, the Town notes that the investigation report referenced in Item 3 was prepared by special counsel for the Town. However, we leave the decision to the Supervisor of Public Records for the Town to release the report. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claims made by the Town to withhold the records responsive to Items 3 and 4 of the request, the Town must provide this office with un-redacted copies of the responsive 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

Adam Lamontagne SPR25/1303 Page 7 May 22, 2025 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 records responsive to Items 3 and 4 of the request for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Cory Bombredi