Nitschelm, Allen v. Acton-Boxborough Regional School District (SPR 20150651)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 5, 2015 SPRlS/651 Mr. Glenn A Brand Superintendent of Schools Acton-Boxborough Regional School District 16 Charter Road Acton, MA 01720 Dear Superintendent Brand: I have received the petition of Allen Nitschelm of the Acton Forum appealing the response of the Acton-Boxborough Regional School District (School) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Nitschelm requested copies of settlement agreements between the School and School employees from January 1, 2010 to present. You provided two (2) agreements with redactions but withheld one agreement in its entirety because it contains a confidentiality agreement. The School did not cite an exemption to the Public Records Law. Mr. Nitschelm only appealed the School's withholding ofthe one (1) agreement in its entirety. 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 to cite an exemption to the Public Records Law 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); Flatley, 419 Mass. at 511. I find the School failed to meet its burden in responding to Mr. Nitschelm's OneAshburron Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Glenn A. Brand SPR15/651 Page Two October 5, 2015 request because it did not cite an exemption, nor did it explain the applicability of an exemption to the responsive records. Confidentiality agreement In the School's June 16, 2015 letter, you state that the separation agreement between Elizabeth Huber-O'Connell and the School would be withheld because the record "has a confidential provision that does not permit the release of the document by the [School]." You further state that the School "will not release the requested document unless ordered to do so by the State Supervisor of Public Records." 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. Dep't of Health and Human Servs., 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 of Information Act with a private agreement). Therefore, a confidentiality clause cannot be used to circumvent the mandatory disclosure provision of the Public Records Law. As a result, the School failed to meet its burden of explaining with specificity how ageement, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Accordingly, whereas the School has not overcome the presumption that the requested records are public, the School is hereby ordered, within ten (1 0) days, to provide Mr. Nitshcelm with the requested records. If the School maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Nitschelm a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Mr. Glenn A. Brand SPR15/651 Page Three October 5, 2015 cc: Mr. Allen Nitschelm Mr. D.M. Moschos, Esq.