Myers, Charles v. Medway, Town of - Public Schools (SPR 20140229)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 9, 2014 SPR14/229 Supt. Judith A. Evans, Ed. D. Town of Medway-Public Schools 45 Holliston Street Medway, MA 02053 Dear Superintendent Evans: I have received the petition of Charles A. Myers appealing the response of the Town of Medway-Public School Department (Department) to his public records request. See G. L. c. 66, § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Myers requested copies ofthe Department fiscal year 2015 budget and budget back up material. The Department provided him with copies of Department proposed budgets for FY2015. The Department withheld other responsive records citing Exemption (e). Exemption (e) Exemption (e) applies to: notebooks and other materials prepared by an employee of the Commonwealth which are personal to him and not maintained as part of the files of the government unit. G. L. c. 4, § 7(26)(e). The language of the exemption expressly provides that it may not be used to withhold materials that are intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet both criteria of the exemption. The first criterion of the exemption limits its application to records that are work related and can be characterized as "personal" to the employee. Examples of such material would include notes created to refresh an employee's memory of a work related activity and notes created by an employee to assist him in preparing reports for other employees or the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Supt. Judith A. Evans, Ed. D. SPR14/229 Page Two May 9, 2014 files of the governmental entity. Notes that have been shared with someone else, however, cannot be "personal" to their creator. Therefore, this exemption does not apply to materials that are shared with others. The second criterion of this exemption requires that such materials not be kept in a government file. For the purpose of this exemption, "files of a governmental unit" is construed to exclude working files that are transient in nature. Such files lack the permanent nature of a government file. Consequently, the retention of materials in such a working file would not bar the application of this exemption. In accordance with the Public Records Law, a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired inforn1ation. See 950 C.M.R. 32.05(4). In the present case, the Department informed Mr. Myers that these budget supporting materials he requested are notes personal to the assistant superintendent, not maintained as part of Department files, which have not been presented or distributed to anyone. I find that it is within the Department's discretion to withhold such personal notes pursuant to Exemption (e). However, any supporting materials presented or submitted to the assistant superintendent from other members of the Department used to create the personal notes or budget materials, should they exist, are presumed to be public records and must be provided in accordance with the Law. Accordingly, the Department is hereby ordered, within ten (1 0) days of this order, to provide Mr. Myers with the requested records, or provide to this office, with specificity, how a particular exemption applies to each record. If the Department is planning to charge for the cost of complying with this public records request, Mr. Myers must be provided with a detailed written, good faith estimate on each particular request. Once the Department receives the estimate funds, the records must be provided. Failure to comply with this administrative order may result in the filing of a complaint for enforcement in the Superior Court by Mr. Myers. This appeal is now closed. Shawn A. Williams Supervisor of Records cc: Mr. Charles A. Myers Supt. Judith A. Evans, Ed. D.