Colman Herman v. Boston Water & Sewer Commission (SPR 20251757)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 3, 2025 SPR25/1757 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 Appeals This request was the subject of previous appeals. See SPR25/1100 Determination of the Supervisor of Records (May 5, 2025) and SPR25/1417 Determination of the Supervisor of Records (June 4, 2025). In my June 4th determination, I found it was unclear how the settlement agreement responsive to Item 2 of the request could be withheld in its entirety. Subsequently, the Commission responded on June 18, 2025. Unsatisfied with the Commission’s response, Mr. Herman petitioned this office, and this appeal, SPR25/1757, 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 SPR25/1757 Page 2 July 3, 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 contends that the Commission “itemized all the 20 items that are available for redaction pursuant to Globe Newspaper Co., Suffolk Sup. No. 11- 01184-A at 34-35. But . . . failed to state which ones actually apply to the settlement agreement.” The Commission’s June 18th Response In its June 18, 2025 response, the Commission provided “a redacted copy of a settlement agreement,” and cites Exemption (c) of the Public Records Law for redacting the record. See G. L. c. 4, § 7(26)(c). 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). While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as

Dolores Randolph SPR25/1757 Page 3 July 3, 2025 opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Association, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Association, 431 Mass. at 798. In its June 18th response, under Exemption (c), the Commission explains the following: The Commission has enclosed a redacted copy of a settlement agreement that was previously withheld in the Commission’s initial responses on April 17, 2025 and May 19, 2025. As the Supervisor of Records explained, the Suffolk Superior Court has provided a non-exhaustive list of 20 categories of information typically provided in settlement agreements may be redacted pursuant to Exemption (c) of the public records law. See Globe Newspaper Co. v. Exec. Office of Admin. & Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013) (citing M.G.L. ch. 4, § 7, cl. 26(c)). . . . Accordingly, the Commission has redacted all information falling into these categories contained in the settlement agreement. 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

Dolores Randolph SPR25/1757 Page 4 July 3, 2025 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. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claims made by the Commission to redact the responsive record, the Commission must provide this office with an un-redacted copy of the responsive record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Commission’s custody and issue an opinion on the public or exempt nature of the record. 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 Commission is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay.

Dolores Randolph SPR25/1757 Page 5 July 3, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman