Strenger, Miriam v. Middleborough, Town of - Public Schools (SPR 20150013)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 19, 2015 SPRlS/013 Dr. Heather Larkin Director of Pupil Personnel Services Middleborough Public Schools 112 Tiger Drive Middleborough, MA 02346 Dear Dr. Larkin: I have received the petition of Miriam Strenger appealing the response of Middleborough Public Schools (School) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Strenger requested a signed copy of the Director of Pupil Personnel Services' employment contract. In the School's response you denied her request, claiming that the responsive records are exempt from disclosure pursuant to Exemption (c) of the Public Records Law. 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). Custodian's Burden 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(c); 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). 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); Dist. Attorney for the Norfolk Dist., 419 Mass. at 511. The School's response did not contain the specificity required in a denial of access to public records. Instead, the School's response merely cites the exemption without any further explanation as to the exemption's applicability to the requested records. A response in this form OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Dr. Heather Larkin SPR15/013 Page Two March 19,2015 does not satisfy the custodian's burden of proving with specificity that an exemption applies. The School is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the School failed to satisfY its burden in responding to this records request. The School is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and Regulations. Exemption (c) Notwithstanding the School's failure to provide the requisite specificity in its response, a substantive analysis of the School's response is appropriate. In your response, you stated your employment contract is exempt from disclosure pursuant to Exemption (c) because it is part of your personnel file and its disclosure would constitute an unwarranted invasion of your personal privacy. 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) Exemption (c) 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 information that relates to an identifiable individual and is of a "personal nature." Id. at 434. 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 records custodian's classification of materials as "personnel information" is not conclusive. Wakefield Teacher's Ass'n v. Sch. Comm. ofWakefield, 431 Mass. 792,798 (2000). Instead, the nature or character ofthe documents, as opposed to the documents' label, is crucial to the analysis. See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 386 (2002). The Massachusetts Supreme Judicial Court (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. lJ, 329 Or. 401 (1999). The Court further

Dr. Heather Larkin SPR15/013 Page Three March 19,2015 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. Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.l5. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). The substantial public interest in ascertaining the manner in which public officials perform their official duties operates to lessen that which may be considered personal with respect to a public employee. See Attorney General v. Collector of Lynn, 377 Mass. 151, 158 (1979); New Bedford Standard Times Publ'g Co. v. Clerk ofthe Third District Court of Bristol, 377 Mass. 404,417 (1979) (Abrams, J., concurring). Consequently, a government official's employment contract is not exempt from disclosure as personnel information under the first clause of Exemption (c). You also state in your response that disclosure of your employment contract would be an unwarranted invasion of your personal privacy, thereby invoking the second clause of Exemption (c) which exempts from disclosure " ... any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." This clause does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature" while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Attorney Gen. v. Assistant Comm'r ofthe Real Prop. Dep't of Boston, 380 Mass. 623, 625 ( 1980). 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 626 n. 2; 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 records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature." If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v.

Dr. Heather Larkin SPR15/013 Page Four March 19, 2015 Collector ofLynn, 377 Mass. at 156. Your response merely states that disclosure of your employment contract "constitutes an unwarranted invasion of my personal privacy." This response fails to satisfy the School's burden in showing that the second clause of Exemption (c) permits withholding the responsive record. As indicated above, a custodian must first establish that the requested information consists of intimate details. The School did not establish that the information satisfies the first step, therefore it failed to meet its burden to justify nondisclosure under the second clause of Exemption (c). Consequently, your employment contract is not exempt from disclosure under either clause of Exemption (c). Whereas the School may not permissibly withhold responsive information pursuant to Exemption (c), it is hereby ordered to provide Ms. Strenger with the requested records within ten (1 0) days of this order. If the School maintains that any portion of the responsive records are exempt from disclosure it must provide to Ms. Strenger a written explanation, with specificity, of how a particular exemption applies to each record within ten 10 ) days. Supervisor of Records cc: Ms. Miriam Strenger