Smith, Jeffery v. Hardwick, Town Of (SPR 20260563)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 2, 2026 SPR26/0563 Ryan Witkos Town Clerk Town of Hardwick 307 Main Street Gilbertville, MA 01031 Dear Mr. Witkos: I have received the petition of Jeffery Smith appealing the response of the Town of Hardwick (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 29, 2026, Mr. Smith requested: [1] The final investigator’s report, including any conclusions, findings, or recommendations, concerning the hostile work environment investigation authorized by the Select Board in August 2025 and completed in November 2025. [2] Any summary, executive summary, findings memorandum, or other document provided to the Town, Select Board, or other town officials summarizing the results of the above-referenced investigation. [3] Invoices, payment records, contracts, purchase orders, or other documents reflecting any public funds paid to any investigator, consultant, attorney, or firm for conducting or assisting with the above-referenced investigation. The Town responded on February 17, 2026. Unsatisfied with the Town’s response, Mr. Smith petitioned this office and this appeal, SPR26/0563, 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

Ryan J. Witkos SPR26/0563 Page 2 March 2, 2026 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. The Town’s February 17th Response In its February 17, 2026 response, the Town cited Exemption (c) of the Public Records Law to withhold the record responsive to Item 1 of Mr. Smith’s request. See G. L. c. 4, § 7(26)(a), (c). The Town further stated that it “has no records responsive to [Item 2]” and it provided a record responsive to Item 3 of Mr. Smith’s request. Current Appeal In his appeal, Mr. Smith contends: The Town’s response claims Exemption (c) for Item 1 without providing any specific justification, such as how disclosure would constitute an unwarranted invasion of personal privacy given the prior public disclosure of the complaint’s details, nor does it address the required case-by-case balancing of public interest in transparency (particularly regarding public funds spent on investigating an elected official’s conduct that was publicly discussed) against any residual privacy interests. The Town also states there are no responsive records for Item 2, but does not confirm whether a search was conducted or provide any details on the scope of that search. For Item 3, records were provided, but they appear incomplete or redacted without explanation (e.g., the attached invoice lacks detailed time records or supporting documentation as requested in related prior requests). . . . 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

Ryan J. Witkos SPR26/0563 Page 3 March 2, 2026 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 – Medical and Personnel Information 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). 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 Association v. School 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)

Ryan J. Witkos SPR26/0563 Page 4 March 2, 2026 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. In its February 17th response, the Town merely cites Exemption (c) of the Public Records Law to withhold the record responsive to Item 1 of Mr. Smith’s request, without any explanation of its applicability to the responsive record. Based on the Town’s response, it is unclear how the record constitutes one of the core categories of personnel information useful in making employment decisions regarding an employee. Further, it is not clear how the record contains 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 Town 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. Id. The Town must clarify these matters. Additionally, the Town must clarify how the responsive record can be withheld in its entirety and why segregable portions cannot be provided. See 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 non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additional Records Based on the Town’s response and in conjunction with the information provided in Mr. Smith’s appeal, it is unclear if the Town possesses additional records responsive to the request. Specifically, it is unclear whether the Town possesses additional records responsive to Item 2 and Item 3 of Mr. Smith’s request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the

Ryan J. Witkos SPR26/0563 Page 5 March 2, 2026 time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Town must clarify whether additional records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Smith 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. Smith may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeffery Smith