Olufunmilola Shelly v. Framingham, City of (SPR 20251532)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 9, 2025 SPR25/1532 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street, Room B-37 Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Olufunmilola Shelly appealing the response of the City of Framingham (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 14, 2025, Ms. Shelly requested “[a]ny signed NDA entered into by [an identified individual] between 3/1/2024 and present.” The City responded on May 29, 2025. Unsatisfied with the response, Ms. Shelly petitioned this office and this appeal, SPR25/1532, 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. 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

Paul J. Iversen SPR25/1532 Page 2 June 9, 2025 The City’s May 29th Response In its May 29, 2025 response, the City informed Ms. Shelly that it was withholding one responsive record pursuant to Exemption (c) of the Public Records Law. Current Appeal In her May 30, 2025 petition to this office, Ms. Shelly contended that the City had not met its burden to withhold the responsive record in its entirety and sought the disclosure of any non-exempt, segregable portions. 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. 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).

Paul J. Iversen SPR25/1532 Page 3 June 9, 2025 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 May 29, 2025 response, the City stated: Employment severance and separation agreements inherently pertain to personnel matters, specifically relating to employee termination or separation from public employment. Severance and separation agreements implicate privacy concerns because, inter alia, disclosure could adversely affect their future employment opportunities and result in the dissemination of sensitive personal information, creating an unwarranted invasion of personal privacy. In an email communication to this office on June 5, 2025, the City further clarified its position as follows: This agreement inherently pertains to personnel matters, specifically relating to separation from public employment. As affirmed in Globe Newspaper Co. v. Executive Office of Administration and Finance, No. 011-1184 (Mass. Super. Ct. Apr. 25, 2011) and subsequent litigation, severance and settlement agreements implicate privacy concerns because disclosure publicly identifies individuals who have separated from employment under sensitive or contentious circumstances. Such disclosures could adversely affect their future employment opportunities and result in the dissemination of sensitive personal information, creating an unwarranted invasion of personal privacy. This agreement is inherently of a personal nature and relates to a particular individual. There is no way to produce even a redacted version of this agreement without irrevocable loss of the privacy the former employee bargained for. As affirmed by the Court in Wakefield, only information that does not permit the identification of any individual is not exempt from disclosure. See Wakefield Teachers Ass'n v. School Comm. of Wakefield, 431 Mass. 792, 799-800 (2000). As a result, as this request is specifically for one individual, it is not possible to safeguard the former employee’s privacy rights without withholding the record. Additionally, the release of this record would undermine the City’s ability to resolve claims without expensive litigation. While there is a public interest in knowing how tax dollars are spent, the balancing test required by exemption (c) demands that the public interest in obtaining the requested information must “substantially outweigh” the seriousness of any invasion of privacy. PETA, 477 Mass. at 291-292. Due to the chilling effect release of this record may have on future separation resolutions, it is not clear that the public interest alone tilts toward release of this record.

Paul J. Iversen SPR25/1532 Page 4 June 9, 2025 The public interest in disclosure here is minuscule compared to the counterbalanced public and privacy interests at stake, never mind substantially outweighing them. It is one former employee out of thousands. The risk of release serves to irrevocably harm both the former employee and the City’s ability to effectively resolve future matters without litigation, and must not be allowed under the law. 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 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 City’s response, it is unclear how the responsive record, in its entirety, relates to the twenty areas cited in the Globe decision. See id. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The City must explain how segregable portions cannot be provided.

Paul J. Iversen SPR25/1532 Page 5 June 9, 2025 Conclusion Accordingly, the City is ordered to provide Ms. Shelly 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. Ms. Shelly may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Olufunmilola Shelly