Kane, Joanne v. Westfield, City of - Gas and Electric Department (SPR 20260557)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2026 SPR26/0557 Lauren Eckert HR Associate Westfield Gas & Electric Light Department 100 Elm Street Westfield, MA 01085 Dear Ms. Eckert: I have received the petition of Joanne Kane appealing the response of the Westfield Gas and Electric Department (Department/WG+E) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 2, 2026, Ms. Kane requested the following: 1. Vendor & Invoice Records - Itemized invoices submitted by or paid to Brodeur McGan P.C. including dates, services rendered, amounts billed/paid, and identification of which department(s) funded the payment (Gas, Electric, Telecommunications). 2. Compensation & Payroll Structure For the General Manager, Assistant General Manager, and all employees (Jan 1, 2025–present): - Base salary - All components of compensation, broken down by type (stipends, bonuses, longevity pay, incentives, vehicle allowance, or any supplemental pay) - Departmental allocation of salary costs (Gas, Electric, Telecommunications, if apportioned) - All salary increases or adjustments, with effective dates and dollar amounts for each individual and position For WG+E Commissioners: - Base salary or stipend - Any additional compensation - Dates and amounts of any changes 3. Leave Records - Vacation and sick leave used (dates) for General Manager … and Ass. 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

Lauren Eckert SPR26/0557 Page 2 March 3, 2026 General Manager [a named individual] since 2021 4. Vehicles For any vehicle assigned to or used by the General Manager and Assistant General Manager since 2021: - Bill of sale or purchase agreement - Lease agreement, if applicable - Procurement method (bid, state contract, cooperative purchase, sole source, etc.) - Purchase price or lease cost - Departmental funding source - Vehicle assignment records - Mileage or usage logs - Fuel card records - Maintenance invoices 5. Performance - Performance evaluations for General Manager and Assistant General Manager since 2021 - Board/Commission meeting minutes and votes where compensation, contracts, and vehicles 6. Assistant General Manager Hiring Process [a named individual] - The number of applicants interviewed - Records showing where the position was publicly posted - Job posting announcements or advertisements - Approval from Commission for Assistant General Manager position The Department responded on February 12, 2026. Unsatisfied with the Department’s response, Ms. Kane petitioned this office, and this appeal, SPR26/0557, 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

Lauren Eckert SPR26/0557 Page 3 March 3, 2026 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 her appeal petition, Ms. Kane contends that “[g]iven the nature of the request — which concerns the use of public funds, senior management compensation, procurement of publicly funded assets, and hiring practices at a municipal utility — I believe the denial is overly broad and inconsistent with the presumption of public access under Massachusetts law.” The Department’s February 12th Response In its February 12, 2026 response, the Department states that it is withholding responsive records pursuant to Exemptions (c), (d), and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(c), (d), (n). Specifically, the Department argues the following: After careful review, WG+E must deny the request in whole and in part, as the records sought are exempt from disclosure under multiple provisions of Massachusetts law, as detailed below. 1. Vendor & Invoice Records – Legal Services Records relating to invoices, billing statements, descriptions of legal services, and departmental allocations for Brodeur McGan P.C. are exempt from disclosure under G.L. c. 4, § 7(26)(d), as they are protected by the attorney-client privilege and/or constitute attorney work product. Disclosure of itemized billing entries would reveal legal strategy, confidential communications, and the nature of legal advice sought by WG+E. 2. Compensation, Payroll Structure, and Leave Records Records reflecting detailed compensation components, salary adjustments, departmental allocations, payroll structure, and leave usage for identified individuals constitute “personnel and medical files or information” and are exempt from disclosure under G.L. c. 4, § 7(26)(c), where disclosure would constitute an unwarranted invasion of personal privacy. This exemption applies to base salary components beyond aggregate salary figures, individualized compensation items, leave dates, and past salary adjustments. 3. Performance Evaluations Performance evaluations for the General Manager and Assistant General Manager are exempt from disclosure under G.L. c. 4, § 7(26)(c), as they are personnel records whose disclosure would constitute an unwarranted invasion of privacy and would undermine the integrity of the employee evaluation process.

Lauren Eckert SPR26/0557 Page 4 March 3, 2026 4. Vehicles, Usage, and Security-Sensitive Records Records relating to vehicle assignments, mileage or usage logs, fuel card usage, and maintenance history for vehicles assigned to senior management are exempt under G.L. c. 4, § 7(26)(n), as disclosure would be likely to jeopardize public safety or security by revealing patterns of movement, usage, or operational practices of key personnel. 5. Board or Commission Deliberations To the extent records responsive to your request would reveal internal deliberations, recommendations, or pre-decisional discussions of the WG+E Commission regarding compensation, contracts, or personnel matters, such records are exempt under G.L. c. 4, § 7(26)(d) and/or G.L. c. 4, § 7(26)(c), as deliberative process materials intended to foster candid internal discussion. 6. Assistant General Manager Hiring Process Records relating to applicant pools, interview processes, and internal hiring deliberations are exempt from disclosure under G.L. c. 4, § 7(26)(c) and (d), as they involve personnel information of applicants and internal evaluative and deliberative materials. Disclosure could also deter qualified candidates from applying for public employment. Where records contain both exempt and non-exempt information, WG+E has determined that the exempt material is not reasonably segregable without revealing protected information or rendering the remaining content meaningless. 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 Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987).

Lauren Eckert SPR26/0557 Page 5 March 3, 2026 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. 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. Second Clause – Privacy Analysis under the second clause of 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 clause 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). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause 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.

Lauren Eckert SPR26/0557 Page 6 March 3, 2026 Based on the information provided in the Department’s response, where the Department has withheld employee performance evaluations, I find that such records fall within the core categories of personnel information described in Wakefield as useful in making employment decisions regarding an employee, and are exempt under Exemption (c). See Wakefield, 431 Mass. at 798; Colman M. Herman v. City of Boston, et al., Suffolk Superior Court, Civil Action No. 2384CV02395 at 6 (June 20, 2024) (“personnel files ... shall be considered exempt under exemption (c) and Wakefield.”). Consequently, I find that the Department has met its burden to withhold the performance evaluations under Exemption (c). However, based on the Department’s response, it is unclear how compensation, payroll structure, and leave records, and records of the hiring process, constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is also uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 292. Specifically, the Department has not demonstrated that any privacy interest concerning a public employee’s compensation would outweigh the public interest in disclosure. Further, public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985). The Department must clarify these matters. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under

Lauren Eckert SPR26/0557 Page 7 March 3, 2026 Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. Based on the Department’s response, I find it is unclear what deliberative process the responsive records relate to, nor how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, it is uncertain how disclosure of the records would taint any ongoing deliberative process. Additionally, I find the Department has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5). Further, any information contained in the responsive records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Additionally, it is unclear how the responsive records constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the Department has not met its burden to show that the responsive records are not factual in nature, nor reasonably completed, nor that the records are interwoven with opinions or analysis leading to opinions. See DaRosa at 448. The Department is reminded that “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements,

Lauren Eckert SPR26/0557 Page 8 March 3, 2026 security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. Based on the Department’s response, it is unclear how the records of vehicle assignments, mileage or usage logs, fuel card usage, and maintenance history for vehicles resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how such records resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the records are the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). Further, the Department did not provide factual heft to support the withholding of the requested records in their entirety pursuant to Exemption (n). Specifically, the Department has not sufficiently explained how disclosure of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Department must clarify these matters.

Lauren Eckert SPR26/0557 Page 9 March 3, 2026 Conclusion Accordingly, the Department is ordered to provide Ms. Kane 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. Ms. Kane may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joanne Kane