Let the Judge decide...

On Feb 12, 2009, at 12:06:08 PM, amherstac@aol.com wrote:
From: amherstac@aol.com
Subject: Appeal for Public Documents denial
Date: February 12, 2009 12:06:08 PM EST
To: pre@sec.state.ma.us

Secretary of the Commonwealth
Public Records Division
McCormack Building, Room 1719
One Ashburton Place
Boston, MA 02108

I wish to appeal Amherst Town Manager Laurence Shaffer’s denial of my Public Documents Request dated 1/26/09. The document in question is an email of complaint to the town manager with job related criticism including the possible disappearance of town equipment; that statement was also copied to all five Amherst Select Board members. Therefor I believe it is a public document.

That whistleblower is no longer working as a municipal employee and will be receiving money (either tax money or insurance money) as severance compensation. I firmly believe the general public has a right to know.

And because that individual signed a “non disclosure” agreement with the town, he cannot tell his side of the story or make those potentially serious allegations public.

Sincerely Yours,

Larry Kelley
Amherst Town Meeting member
Amherst Redevelopment Authority
http://www.onlyintherepublicofamherst.blogspot.com/

---Original Message-----
From: Shallow, Joanne (SEC)
To: amherstac@aol.com
Sent: Thu, 12 Feb 2009 12:32 pm
Subject: RE: Appeal for Public Documents denial

your case number is SPR09.044. In app one week you will receive a formal
acknowledgement letter in the mail with the case number and name of the attorney
assigned to review your appeal. What is you mailing address


On Feb 12, 2009, at 1:02:33 PM, amherstac@aol.com wrote:

Hi Joanne,
Sorry, I should have included that (and today's date):
Larry Kelley
460 West St.
Amherst, Ma. 01002
Thank you for a prompt response.
Larry

##################################################################
Memo: Town Manager
Re: Complaint from municipal Information Technology Department worker
1/26/09
Dear Mr. Shaffer,

Could I please get any written or electronic correspondence during the calendar year 2008 up to today’s date concerning a complaint by an Information Technology municipal employee on how the department is/was being managed including his communications, and any response from your office to him, the IT manager or the Amherst Select Board?

Larry Kelley

amherstac@aol.com
Cc: Amherst Select Board

From: Shaffer, Larry
To: amherstac@aol.com
Sent: Mon, 26 Jan 2009 4:22 pm
Subject: RE: Public Documents Request

Dear Mr. Kelley,

Could you be more specific with your request?

Thank you.

Larry

From: amherstac@aol.com
To: ShafferL@amherstma.gov
Sent: Mon, 26 Jan 2009 4:27 pm

Hey Larry,

Specifically an email sent to you and Cc'd to the Select Board, I believe in November, from XXXXXX who is now no longer employed with the town.


Larry


From: Shaffer, Larry
To: LarryK4
Cc: DJENKINS@K-PLAW.COM; Zlogar, Kay ; Eunice Torres

Sent: Tue, 3 Feb 2009 5:12 pm

Subject: FW: Request for Documents

Larry:

Please let this acknowledge receipt of your e-mail of January 26, 2009, requesting production of an e-mail from XXXXXX to myself and the Board of Selectmen in November 2008. Although record responsive to your request exist, such documents may be withheld from disclosure pursuant to the Public Record Law.

The document may be withheld pursuant to:

Exemption (c) of the Public Records Law. Exemption (c) permits a custodian to withhold records that are:

Personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.

The Supreme Judicial Court (“SJC”) has defined personnel records to include any records that would be helpful in making determinations regarding hiring and firing. Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). The court specifically noted that employee work evaluations and promotion and termination information pertaining to a particular employee fall within the definition of personnel records. Thus, certain responsive records are exempt as they fall within the definition of personnel records and relate to specifically named individuals.

Exemption (d). The document relates to the development of policy. Exemption (d) is intended to avoid release of materials that could taint the deliberative process if prematurely disclosed and applies to:

Inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.

The application of the exemption is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). In considering exemption (d), the court in General Electric Company v. Department of Environmental Protection, 429 Mass. 798, 807 (1999) stated, “The purpose of exemption (d) is to foster independent discussions between those responsible for a governmental decision in order to secure the quality of the decision.” Id. Accordingly, premature disclosure of the document may jeopardize the Town’s ability to analyze the issues, consider the recommendations of the employee, and reach a decision as to how to proceed in this matter. As such, responsive records are exempt pursuant to exemption (d) of the Public Records Law.

Exemption (f). Further, the requested report contains innumerable details regarding voluntary complainants and witnesses. Exemption (f) of the Public Records Law allows a custodian of records to withhold from disclosure those records that are:

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.

One of the purposes of this exemption is to encourage people to come forward and co-operate in matters under investigation. Globe Newspaper Company, 419 Mass. at 863; Bougas v. Chief of Police of Lexington, 371 Mass. 59, 354 N.E.2d 872 (1976). Thus, exemption (f) permits the permanent withholding of any details that would tend to identify complainants and voluntary witnesses, even in those instances where an investigation has concluded.

As noted, the responsive records are replete with details that would identify complainants, as well as witnesses that voluntarily provided information and cooperated with the investigation. The SJC has held that, “[t]he 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…” Globe Newspaper Company v. Boston Retirement Board, 388 Mass. 427, 438 (1983). Considering the content of the responsive records from the perspective of the public, as well as those who are familiar with the subject matter, the names and identifying details of the voluntary witnesses and complainants are inextricably intertwined with the remainder of the information contained in the document. The identifying details cannot be redacted in such a way so as to permit disclosure of the records without identifying the individuals involved.

Stated differently, due to the small number of individuals involved in the investigation and their involvement with the matters at issue in the document, the document may not be redacted in such a way so as to avoid the possibility that the unredacted portion of the records may indirectly identify these individuals. Accordingly, the responsive documents will be withheld from disclosure pursuant to exemption (f).

Based on the above your public records request is denied. You may appeal this decision to the Supervisor of Public Records.

Very truly yours,

Laurence Shaffer
Town Manager

I of course hit "reply all," and since the Town Manager is a veteran I'm sure he gets the reference:

Sent: Tue, 3 Feb 2009 5:41 pm
Subject: Re: Request for Documents
To: Amherst Town Manager
From: Larry Kelley
Re: Public Records hoarding

Dear Laurence,

Nuts!

Very truly yours,

Larry K
#############################################################
I then get a hit on this blog at 5:55 PM (less than 15 minutes later) from someone in Boston doing a Google search: 'Open Meeting Law, Public Records Law, Amherst Town Manager'. And of course, the only folks outside Amherst on that email 'reply all' list was the town law firm, those Big City Boys, Kopelman and Paige, P.C. Hmmm... But you would think Big Time lawyers would do their research BEFORE giving their paid opinions.


You may want to turn up your volume slightly to catch all of this because not only did ACTV SCREW UP the video portion of Monday night's SB meeting, I think they also forgot to turn on my microphone (hey, what the Hell do you want from a $250,000 publicly funded operation)

But we can't send a positive message to our employees?
Let's hear if for whistleblowers