Benjamin Davey v. Tisbury, Town of (SPR 20252399)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 26, 2025 SPR25/2399 J. Hillary Conklin Town Clerk Town of Tisbury 51 Spring Street, Box 1239 Vineyard Haven, MA 02568-0606 Dear Ms. Conklin: I have received the petition of Benjamin Davey appealing the response of the Town of Tisbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 1, 2025, Mr. Davey requested, “[a] completely unredacted copy of the KP Law investigation into allegations of misconduct at Tisbury Fire Department and Tisbury Ambulance.” Prior Appeal This request was the subject of a prior appeal. See SPR25/2070 Determination of the Supervisor of Records (July 30, 2025). In my July 30th determination, I found that the Town had not met its burden to withhold responsive records in their entirety under the attorney-client privilege and Exemptions (c), (d), and (f) of the Public Records Law. The Town responded on August 13, 2025. Unsatisfied with the response, Mr. Davey petitioned this office and this appeal, SPR25/2399, 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). 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

J. Hillary Conklin SPR25/2399 Page 2 August 26, 2025 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. The Town’s August 13th Response In its August 13, 2025 response, the Town produced a copy of the responsive record, redacted pursuant to Exemptions (c) and (f) of the Public Records Law. Current Appeal In his August 13, 2025 petition to this office, Mr. Davey contended that the Town had not met its burden to redact the responsive record. 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). First Clause - Personnel 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 Corp. 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 Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386.

J. Hillary Conklin SPR25/2399 Page 3 August 26, 2025 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 Ass’n, 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 Ass’n, 431 Mass. at 798. In its August 13, 2025 response, the Town stated: Exemption (c) covers “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…” Here, as mentioned above, the redacted portions of the Report include the names and identifying details of voluntary witnesses to this sensitive personnel matter within the Department, the disclosure of which would constitute an unwarranted invasion of personal privacy. Additional minimal redactions also implicate Exemption (c), as information that falls within the Court’s decision in Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792 (2000) (“Wakefield”). With respect to personnel documentation, the Court in Wakefield determined that disciplinary and other personnel documentation are “absolutely exempt from disclosure,” as non- disclosure protects “the government’s ability to function effectively as an employer.” Wakefield, 431 Mass. at 799, 802; see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983); Brogan v. School Committee of Westport, 401 Mass. 306, 308 (1987). Here, this Report clearly constitutes personnel information as it pertains to a sensitive personnel matter within the Department involving numerous Town employees and officials. Further, the minimally redacted portions of the Report involve information that could be used in making disciplinary decisions, the disclosure of which could hinder the Town’s ability to function effectively as an employer. As such, this Report has also been redacted pursuant to Exemption (c). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.

J. Hillary Conklin SPR25/2399 Page 4 August 26, 2025 G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Id. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Redactions may be appropriate where they serve to preserve the anonymity of the complainant and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18; Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its August 13, 2025 response, the Town stated: One purpose of this exemption is to avoid the disclosure of investigatory information or other process for resolving the matters being investigated, and the prevention of disclosure of confidential investigative techniques, procedures, or sources of information. WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 601 (1990); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Accordingly, limited information concerning investigative techniques has been redacted. Exemption (f) has also been held to allow investigative officials to provide an assurance of confidentiality to persons so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. The Report here contains the names and identifying details of voluntary witnesses, and as such, these names and identifying details have been redacted accordingly pursuant to Exemption (f). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 (1979).

J. Hillary Conklin SPR25/2399 Page 5 August 26, 2025 In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (c) and (f) claims made by the Town to redact the responsive record, the Town 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 Town’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 Town is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Benjamin Davey Steven C. Johnson, Esq.