Colman Herman v. Boston Water & Sewer Commission (SPR 20251417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 4, 2025 SPR25/1417 Dolores Randolph Records Access Officer Boston Water and Sewer Commission 980 Harrison Avenue Boston, MA 02119 Dear Ms. Randolph: I have received the petition of Colman Herman appealing the response of the Boston Water and Sewer Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 3, 2025, Mr. Herman requested the following: [1] [T]he ledger of the Boston Water and Sewer Commission for the period January 1, 2024 to the present. [2] [C]opies of any and all settlement agreements, exit agreements, separation agreements, letter agreements, and/or the like executed by the Boston Water and Sewer Commission ... from January 1, 2020 to the present. Previous Appeal This request was the subject of a previous appeal. See SPR25/1100 Determination of the Supervisor of Records (May 5, 2025). In my May 5th determination, I ordered the Commission to clarify whether it possesses additional records responsive to Item 1 of the request, and ordered the Commission to clarify its claims for withholding records responsive to Item 2. Subsequently, the Commission responded on May 19, 2025. Unsatisfied with the Commission’s response, Mr. Herman petitioned this office, and this appeal, SPR25/1417, 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 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

Dolores Randolph SPR25/1417 Page 2 June 4, 2025 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. Current Appeal In his appeal petition, Mr. Herman argues the following: a) Settlement agreements are public records and can be suitably redacted. See Globe Newspaper Co. v. 6 Exec. Office of Admin. and Fin., Suffolk Sup. No. 11- 01184-A (June 14, 2013). b) I will say it again. If [the Commission] were to have [its] way, all public officials would need to do is to go to Staples, buy a rubber stamp that says “confidential,” and use it in disingenuous, arbitrary attempts to withhold any documents they so choose, irrespective of the law. c) [The Commission]’s claim of exemption (c) lacks the specificity required by the public records law; d) [The Commission] fails to address your order regarding attorney-client privilege. Further, Mr. Herman asks that this office “order the Boston Water and Sewer Commission to produce the withheld settlement agreement.” Upon review of the appeal petition, it appears that Mr. Herman objects only to the Commission’s response regarding Item 2 of his request. The Commission’s April 17th and May 19th Response In its previous April 17, 2025 response, the Commission provided records responsive to Item 1 of the request, and provided one settlement agreement responsive to Item 2. In its May 19, 2025 response, the Commission provided four additional documents responsive to Item 1 of the request, and states that it is withholding a second settlement agreement responsive to Item 2, pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c).

Dolores Randolph SPR25/1417 Page 3 June 4, 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). 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 17th response, under Exemption (c), the Commission argues the following: The Commission objects to the production of this second settlement agreement because it contains information that is exempted from disclosure under Exemption (c) under both the “personnel file” and “privacy” prongs of the exemption. Exemption (c) to the Massachusetts public records law exempts from disclosure

Dolores Randolph SPR25/1417 Page 4 June 4, 2025 the production 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.” M.G.L. ch. 4, § 7, cl. 26(c). This exemption contains two parts. On the one hand, Exemption (c) ensures that “personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual.” Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (2002). “[C]ore categories of personnel information” include, “[a]t a minimum . . . employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information.” Wakefield Teachers Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). On the other hand, Exemption (c) ensures that otherwise private information will not be disclosed unless “the public interest in obtaining [that] information substantially outweighs the seriousness of any invasion of privacy.” Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979) (citing Campbell v. U.S. Civil Serv. Comm’n, 539 F.2d 58, 62 (10th Cir. 1976)). The settlement agreement is exempt from disclosure because it contains, among other things, information about an employee’s promotion/demotion/resignation, disciplinary information, and non-public information relating to a specific individual—the disclosure of which would constitute an unwarranted invasion of personal privacy. These details are clearly “useful in making employment decisions regarding an employee” and therefore are exempt from disclosure. Wakefield, 431 Mass. at 798. Furthermore, the withheld settlement agreement contains a confidentiality provision that would be breached if the Commission produced the agreement to another individual who is not a party to the agreement. The Commission will not produce this agreement without a clear order from the Supervisor of Records requiring its production despite the existence of a confidentiality clause. Settlement Agreements The controlling case for redactions made to a settlement agreement is Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). In the Globe decision, the court listed the following information as properly subject to redaction within a settlement agreement under the personnel clause of Exemption (c): (1) promotion of grade; (2) compensation at a different salary grade; (3) adjustment in compensation; (4) waiver of bumping rights and/or recall rights; (5) entitlement to remain on administrative leave; (6) requirement to tender a letter of resignation; (7) demand of voluntary resignation; (8) reinstatement; (9) layoff; (10) agreement by an agency to remove a letter from a personnel file; (11) agreement by an agency concerning the providing of references and their contents; (12) the requirement that an employee meet with a supervisor to review progress of assigned matters; (13) adjustment of an agency's records to reflect an

Dolores Randolph SPR25/1417 Page 5 June 4, 2025 employee’s status; (14) adjustment or continuation of employee benefits, such as unemployment assistance, COBRA, and retirement benefits, and agreement regarding back wages; (15) recitations concerning grievances, including agreement to withdraw a grievance and acknowledgment by an employee of the absence of a pending grievance; (16) a statement of resolution of all claims concerning termination of employment and prior disciplinary actions, (17) agreement to turn in agency property, (18) global resolution involving the entering of a nolle prosequi by a prosecutorial official; (19) language affirming an agency’s legitimate concern for discipline and an employee's receipt of a memorandum of verbal discipline; and (20) completion by an employer of harassment training. Globe Newspaper Co., Suffolk Sup. No. 11-01184-A at 34-35. Based on the Commission’s response, it is unclear how the withheld settlement agreement, in its entirety, relates to the twenty areas cited in the Globe decision. See Globe Newspaper Co., Suffolk Sup. No. 11-01184-A at 34-35. The Commission must explain whether the settlement agreement can be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Commission is ordered to provide Mr. Herman with a response to the request, provided 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. Mr. Herman may appeal the substantive nature of the Commission’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman