mo KOPELMAN and PAIGE,p.c. —— usrensreet The Leader in Municipal Law T: 617.556.0007 F: et7658.1795 won plawcom February 16, 2010 Mark R. Reich mmrich@kplaw.com BY FACSIMILE (781) 433-8202 Mr. Christopher Helms Editor Watertown TAB & Press P.O. Box 9113 Needham, MA 02492 Re: Watertown Dear Mr. Helms Lam writing as a follow-up to our conversation of Friday, February 12, 2010, regarding the comments made by you in an editorial printed in the Watertown TAB and Press relative to the Town Manager’s determination not to release certain information regarding unsuccessful applicants for appointments. In that conversation, I made clear the Town administration’s disappointment with language contained in your editorial. Of particular concern was a statement in your editorial dated February 11, 2010 entitled, “Don’t keep Watertown board applicant names secret.” In that editorial you state, “For years, [Town Manager] Driscoll has thumbed his nose at an order by the state’s supervisor of public records, Alan Cote, to name the people who applied to be on the Town’s Contributory Retirement Board. Citing privacy concerns, Driscoll refuses to release the names. And he’s betting that the attorney general won't force him to do so.” These statements suggest that the Town Manager takes a cavalier attitude towards the issue of public records and, in particular, orders issued by the Supervisor of Public Records. This same suggestion is made in a February 11, 2010 article entitled, “Watertown Town Manager won't give up names of applicants for library reuse committee” which indicated that the Town Manager’s appeal of the 2006 order was denied without further elaboration. As we discussed, the Town Manager takes these issues very seriously. In fact, in response to the 2006 order of the Supervisor of Public Records, the Town Manager's office engaged in substantial dialogue with the Supervisor and requested a reconsideration of the Supervisor's order. ‘That request was based upon the Town Manager’s efforts to protect the privacy interests of the individuals involved. Contrary to the suggestions in your editorial, those privacy interests belong specifically to the individuals and not the Town Manager. The Town Manager sought to protect, those interests as allowed by the provisions of G.L. c. 4, §7, clause 26(c) which exempts from disclosure the release of documents which may result in the unwarranted invasion of personal privacy. Boston + Worcester + Northampton + LenoxKOPELMAN ano PAIGE, pc. Mr. Christopher Helms Editor February 16, 2010 Page 2 Since candidates for appointments are only subject to public consideration if they are brought before the Town Council for confirmation, the release of information related to unsuccessful candidates would be unwarranted. As you are aware from your discussion with the Town Manager on February 11, 2010 after the previously mentioned editorial and article appeared on-line, the role of the Town Couneil with respect to appointments is to confirm or reject appointees brought forward by the Town Manager ~ there is no opportunity for the Town Council to interview all candidates, considered by the Town Manager for appointments. Only those candidates selected by the Town Manager come before the Town Council for consideration, at which point the privacy interests of such candidates end, Unsuccessful candidates maintain the privacy interest as they have no expectation that their unsuccessful candidacy will become public. Tenclose for your information a letter dated October 4, 2007 from the General Counsel to the Office of the Attomey General to the Supervisor of Public Records indicating that the Attorney General agreed the documents which were the subject of the 2006 order of the Supervisor were not subject to disclosure. For this reason, the Office of the Attorney General declined to enforce the order. The Town Manager was not “betting” that the Attorney General would not “force” the release of the documents. The Town Manager availed himself the legal process available to him to protect the privacy interests at issue and relies upon the clear determination of the Office of the Attorney General in this matter. Both your editorial and the related article leave a very public impression that the Town Manager acted inappropriately or somehow in violation of law with respect to the 2006 order, The facts in this matter clearly show otherwise. I therefore request that you prominently print a retraction of your editorial comments as well as those contained in the related article and acknowledge that, far from “thumbing his nose” at an order of the Supervisor of Public Records, the Town Manager correctly sought to protect the privacy interests of those involved, Based upon our conversation of February 12, 2010 and the facts of the matter as relayed above, such an action on your part would seem most appropriate. Very truly yours, Mark R. Reich. MRR/bp Ene. cc: Town Manager own Cane 393655/WATRIDOOLo > g THE COMMONWEALTH OF MASSACHUSETTS 8 OFFICE OF THE ATTORNEY GENERAL ONE ASHBURTON PLACE » Boston, MASSACHUSETTS 02108 ‘Marra CoAKLey (617) 727-2200 ArToaney GENERAL sr ago sate ma.as October 4, 2007 Alan N. Cote ‘Supervisor of Public Records Secretary of the Commonwealth One Ashburton Place, 17" Floor Boston, MA 02108 Re upervisor of Public Records Order SPR06/199 Dear Supervisor Cote: This is in response to your referral of SPRO6/199 to the Attomey General pursuant to GL. c. 66, § 10(b) “for whatever measures he deems necessary to insure compliance with the provisions of this section” of the Public Records Law. As explained below, the Attorney General declines to take enforcement action on this matter. It is the view of the Office of the Attorney General that in this situation the information requested from the Watertown Town Manager, specifically the applications, resumes and other documents from the unsuccessful candidates for appointment as the Fifth Member of the Watertown Retirement Board (our office has been told that there were 9 applicants), are the type of documents that fall under Exemption (c), “personnel...files or information,” of the Public Records Law. SeeWakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792 (2000) and Worcester Telegram _& Gazette Corporation v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003). These documents are “absolutely exempt from mandatory disclosure.” Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983), Therefore, based on the foregoing, the Office of the Attomey General declines enforcement of SPR06/199. The requester is apprised that G.L. c. 66, § 10(b) reserves to the requester the right to petition the Superior Court for the production of materials pursuant to the Public Records Law.Very truly yours, fy ay ‘/ James T. McKinlay, IT ] General Counsel ec: Thomas V. Thibaut, Chairman of the Watertown Retirement Board ‘Michael J. Driscoll, Town Manager, Watertown Mark R. Reich, Esq., Kopelman and Paige, P.C..~