Amelia Pak-Harvey v. Lowell, City of - Public Schools (SPR 20160076)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 4, 2016 SPR16/076 Mr. James P. Hall. Esq. Qua, Hall, Harvey & Walsh Attorneys at Law 25 Fletcher Street Chelmsford, MA 01824 Dear Attorney Hall: I have received the petition of Amelia Pak-Harvey of The Lowell Sun appealing the response of City of Lowell-Public Schools (School) to a January 14, 2016 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Pak-Harvey requested a copy of a report regarding a "texting incident at Lowell High School that occurred in September" of2015. In her request Ms. Pak-Harvey acknowledged that a responsive record may need to be "redacted as necessary." In a response dated January 27, 2016, the School provided a redacted version of the report and explained the redactions were made under Exemptions (c) and (d) ofthe Public Records Law. G. L. c. 4, § 7(26)(c), (d). Pages 1, 2, 9, 10 and 11 were provided, in redacted form. The remaining pages were withheld entirely. 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). 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 statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Exemption (c) The School is withholding sixteen (16) pages of "attached statements of those interviewed" and "most of the first [nine] (9)" pages under the first and second clauses of Exemption (c). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. James P. Hall, Esq SPR16/076 Page2 March 4, 2016 Exemption (c) permits withholding of: 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) First clause 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. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Id. Second clause The second clause of Exemption (c) 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." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Examples of "intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n.2. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979). The second clause of Exemption (c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information.

Mr. James P. Hall, Esq SPR16/076 Page 3 March 4, 2016 While the School is correct in its assertion regarding the standard used for each clause of the exemption, the School failed to explain why the withheld pages could not be redacted to omit information pursuant to the two clauses of Exemption (c). Once the records are redacted to remove information regarding a specifically identified individual subject to protection under Exemption (c) the exemption would no longer apply with respect to the remaining content of the responsive record. Accordingly, I find the School has failed to satisfy its burden with respect to the application of Exemption (c) to justify withholding entire portions of the responsive record; the record may be redacted to omit such information with the remaining portion subject to mandatory disclosure. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, §7 (26)( d) Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). The School has not established that the withheld portions are "relating to policy positions being developed by the agency." G. L. c. 4, § 7 (26) (d). Further, the School has no made no statement in its denial to state that the withheld portions are not "reasonably completed factual studies or reports on which the development ofs uch policy positions has or may be based." Id (emphasis added). The School claims information may be withheld under Exemption (d) because "the Superintendent is continuing to review the [r]eport and assessing whether disciplinary measures, if any, will occur." The fact that the School and its Superintendent are reviewing the report does not alone render the withheld portions as deliberative for Exemption (d) purposes.

Mr. James P. Hall, Esq SPR16/076 Page4 March 4, 2016 Accordingly, I find the School failed to explain how the withheld portions of the report are exempt from disclosure pursuant to Exemption (d). The School has not established the presence of deliberative content within the withheld portions of the responsive record to justify nondisclosure pursuant to Exemption (d). Conclusion For the reasons discussed above, I find the School has failed to justify withholding public records from mandatory disclosure. Accordingly, the School is hereby ordered, within ten (10) days of this order, to provide Ms. Pak-Harvey with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the School maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Ms. Pak-Harvey 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. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0. 00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist the School in responding to requests for public records I refer the School to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon r quest. Please contact my office directly at the telephone number provided in this dete · fi r further information. illiams cc: Ms. Amelia Pak-Harvey