Nitschelm, Allen v. Acton-Boxborough Regional School District (SPR 20150827)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 21, 2015 SPRlS/827 D. M. Moschos, Esq. Mirick, O'Connell, DeMallie & Lougee, LLP 100 Front Street Worcester, MA 01608 Dear Attorney Moschos: This office has a received a petition from Allen Nitschelm of the Acton Forum appealing the response ofthe Acton-Boxborough Regional School District (School) to his request for a copy of a settlement agreement between the School and a specifically identified School employee. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(6). This request was the subject of a previous appeal. See SPR15/651 Determination of the Supervisor of Records (October 5, 2015). In the October 5 Determination I found the School failed to meet its burden of explaining with specificity how the agreement, in its entirety, is exempt from disclosure. I ordered the School to provide Mr. Nitshcelm with the requested record or a written explanation, with specificity, how a particular exemption applies to the record. In response to the October 5 Determination, the School provided a copy of the agreement with information redacted. The School claims the redacted information is exempt from disclosure pursuant to the Right to Privacy statute G. L. c. 214 § 1B and Exemption (c) to the Public Records Law. G. L. c. 4 §7(26)(c). The School posits that it cannot explain any of the redactions with any further specificity because to do so would render the exemptions claimed null and void. In Camera Inspection of Records Upon further consideration of Mr. Nitschelm' s petition, it is the finding of this office that an in camera review of an unredacted copy of the responsive record would facilitate a determination as to the applicability of any exemption claims made by the School. See 950 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. D. M. Moschos, Esq. SPR15/827 Page Two December 21, 2015 C.M.R. 32.08(6). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. My authority to require the submission of documents for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6) (Supervisor may require an inspection of the requested record(s) in camera during any investigation or proceeding initiated pursuant to 950 C.M.R. 32.08). See also G.L.c. 66, § 1 (Supervisor statutorily empowered to adopt regulations to implement the provisions of the Public Records Law). This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Commission Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Documents are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Documents are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of his duties has access to or control over records). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit a copy of the relevant documents to this office upon a promise of confidentiality. This office does not release documents reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, documents reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Accordingly, the School is hereby ordered to provide this office with an umedacted copy of the responsive settlement agreement within ten (1 0) days. The School may provide this office with an explanation of its position regarding the applicability of exemption to the responsive record. cc: Mr. Allen Nitschelm