Smith, Jeffery v. Hardwick, Town Of (SPR 20260927)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 24, 2026 SPR26/0927 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. Prior Appeal This request was the subject of a prior appeal. See SPR26/0563 Determination of the Supervisor of Records (March 2, 2026). In my March 2nd determination, I ordered the Town to clarify how the responsive record can be withheld in its entirety under Exemption (c) and to state whether the Town possesses additional records responsive to the request. The Town responded on March 15, 2026. Unsatisfied with the Town’s response, Mr. Smith petitioned this office and this appeal, SPR26/0927 was opened as a result. 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 SPR26/0927 Page 2 March 24, 2026 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. The Town’s March 15th Response In its March 15, 2026 response, the Town cited Exemption (c) of the Public Records Law to withhold records responsive to Items 1 and 2 of Mr. Smith’s request. See G. L. c. 4, § 7(26) (c). Current Appeal In his appeal petition, Mr. Smith states the following: 1. Burden Not Met: The Town bears the burden to prove exemption (c) applies . . . . The board publicly voted to hire a third-party mediator/investigator before proceeding to executive session. These public statements further place key details into the public domain, negating claims of “unwarranted invasion” . . . . In this instance, the Town has provided no explanation as to why the public interest in understanding the outcome and findings of an investigation conducted with public resources does not outweigh any asserted privacy interests. . . . Moreover, while the Town cites “medical files or information,” it has provided no evidence that the report involves medical issues rather than workplace conduct (as reflected in the transcripts’ focus on communication, allegations, and board interactions), which is subject to the balancing test favoring public interest in such personnel matters. 2. Inconsistency on Item 2: In the February 17, 2026 response, the Town explicitly stated “Item #2 the Town has no records responsive to this request,”

Ryan J. Witkos SPR26/0927 Page 3 March 24, 2026 asserting that no such summaries or memoranda existed in the Town’s custody or possession at that time, consistent with the definition of public records as materials already “made or received” (M.G.L. c. 4, § 7(26)). However, in the March 15, 2026 response, the Town now claims to be withholding Item 2 under exemption (c), implying that responsive records do exist but are being denied. This unexplained shift raises questions about the accuracy of the initial response and whether a thorough search was conducted initially . . . . 3. No Segregation[:] . . . The Town’s response does not indicate that it conducted any segregation analysis or that it attempted to provide a redacted version of the requested record. Blanket withholding violates this requirement. 4. Precedents Favor Disclosure . . . . 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 – 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.

Ryan J. Witkos SPR26/0927 Page 4 March 24, 2026 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. In its March 15th response, the Town asserts: Item #1: The Town is withholding this information due 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. This matter was discussed with an attorney at the Supervisor’s office.

Ryan J. Witkos SPR26/0927 Page 5 March 24, 2026 Item #2: The Town is also is withholding this information due 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. This matter was discussed with an attorney at the Supervisor’s office. Based on the Town’s response, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is also unclear how the responsive records constitute medical information that is of a personal nature and relates to a specifically named individual. Further, it is not clear 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 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 records can be withheld in their 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). Further, based on the Town’s response, it is unclear what records it possesses that it withheld from disclosure. G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). Therefore, the Town must identify the records it has in its possession that it is withholding under Exemption (c). 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).

Ryan J. Witkos SPR26/0927 Page 6 March 24, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Jeffery Smith