Rothstein, Kevin v. Assabet Valley Regional Technical High School (SPR 20140566)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 22, 2014 SPR14/566 Mr. Tim D. Norris, Esq. Collins, Loughran & Peloquin, P.C. 320 Norwood Park South Norwood, MA 02062 Dear Attorney Norris: I have received the petition of WFXT Fox 25 Producer Kevin Rothstein appealing your response made on behalf of your client the As sab et Valley Regional Vocational School District (District) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Rothstein requested a copy of "all documents related to severance agreement(s), contract buyout(s) or other records, related to departure of former Assabet Valley Regional Technical High School Superintendent Patrick Collins from employment with the district." You denied this request, stating that you believed "the request appears to seek personnel information." G. L. c. 4, § 7 (26) (c). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Failure by district to justify withholding records The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). In your response you cited Exemption (c), and referencing "personnel information," but did not otherwise describe the records that are responsive, or the reasons to justify withholding all responsive records. The response by the District, therefore, did not contain the specificity required in a denial of access to public records. Accordingly, the District is advised that to comply with the Public Records Law and Regulations OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Tim D. Norris, Esq. SPR14/566 Page Two October 22, 2014 it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. I find that the District did not meet its burden of specificity under the Public Records Law to cite an exemption and explain its applicability to the responsive records. Failure by district to notify requester of right to appeal In the event a records custodian denies a request for public records, the requester must be notified in writing of his right to appeal. 950 C.M.R. 32.08(1). In your denial you failed to notify Mr. Rothstein of his right to appeal. Accordingly, the District is advised that all future denials must contain instructions to the requester on a right to appeal a denial to the Supervisor of Records. Exemption (c) In your response you denied access to all records, citing Exemption (c) of the Public Records Law. Exemption (c) applies to: 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 G. L. c. 4, § 7(26)(c) This exemption contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel and medical information. Wakefield Teachers Association v. School Committee ofWakefield, 431 Mass. 792, 798 (2000). The core categories of personnel information include employment applications, employee work evaluations, documentation, and promotion, demotion, or termination information pertaining to a particular employee. I d. These categories of personnel information are considered useful in making employment decisions regarding an employee and are exempt from disclosure. Id. This office has long held that settlement agreements are public records, and must be disclosed, subject to redaction. A 2013 Superior Court decision provides further guidance with respect to the public nature of separation, severance, transition or settlement agreements, as well as the types of personnel information included within such agreements that may be exempt from disclosure. See Globe Newspaper Company, Inc. v. Executive Office of Administration and Finance, et al, Suffolk Superior Court Civil Action No. 11-01184-A (June 14, 2013), 34-35. The parties in the above-captioned matter agreed to refrain from further appeal via a letter agreement

Mr. Tim D. Norris, Esq. SPR14/566 Page Three October 22, 2014 dated December 17, 2013. In a telephone message I left for you on October 9, 2014 I suggested you may wish to review this decision. This call was not returned. Settlement agreements often contain a confidentiality clause. Please be advised that no government agency may make private an otherwise public document merely by entering into an agreement to keep its terms confidential. Washington Post Co. v. Department of Health and Human Services, 690 F.2d 252,263 (D.C. Cir. 1982); see also Galvin v. Mass. Mut. Life Ins. Co., 20 Mass. L. Rep. 533, 28 (2006) (a public employee has no authority to override, by means of a promise of confidentiality, the General Court's determination that any document "made or received" by a public employee shall be available to the public unless one of the legislatively enacted exemptions applies). If such were the case, any government employee could unilaterally frustrate the purpose of the Public Records Law with a rubber stamp. See Washington Post Co., 690 F.2d at 263 (government agency cannot circumvent the Federal Freedom oflnformation Act with a private agreement). Therefore, a confidentiality clause cannot be used to circumvent the mandatory disclosure provision of the Public Records Law. Order I find that the District has not met its burden to withhold all responsive records. Accordingly, the District is ordered to provide copies of all responsive records to Mr. Rothstein in ten (1 0) days, redacted in a manner consistent with the Public Records Law, its Access Regulations and this order. If the District maintains that any portion of the responsive records are exempt from disclosure it may, within thirty (30) days provide to Mr. Rothstein and this office a written explanation, with specificity, how a particular exemption applies to each record. This administrative appeal is now closed. In the event a request for reconsideration is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration filed more than thirty (30) days after the date of this letter will not be considered. Supervisor of Records cc: Mr. Kevin Rothstein