Joseph Viglione v. Medford, City of - Public Schools (SPR 20160108)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 11, 2016 SPR16/108 Mark E. Rumley, Esq. City of Medford - City Solicitor 85 George P. Hassett Drive Medford, MA 0215 5 Dear Attorney Rumley: I have received the petition of Joseph Viglione appealing the response of the City of Medford-Public Schools (School) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Viglione requested a number of records pertaining to four (4) incidents occurring within the schools. In a previous appeal the School provided a written response and some responsive records to Mr. Viglione. See SPR16/029 Determination of the Supervisor of Records (January 26, 2016). On February 9, 2016, Mr. Viglione notified this office that he was appealing the substantive nature of this response. 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 Comrn'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). Response 1 Although you had provided Mr. Viglione with responsive records it remains unclear in the response whether all responsive records were provided. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Mark E. Rumley, Esq. SPR16/108 Page 2 March 11, 2016 Response 2 The School is withholding "any information regarding personnel decisions regarding Ms. Jenna Tarabelsi" under Exemption (c); however, the School did not explain how the exemption applies to all responsive records. 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 purs11ant 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." Ifthe 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

Mr. Mark E. Rumley, Esq. SPR16/108 Page 3 March 11, 2016 determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. The School failed to explain why the responsive records could not be redacted to omit information that may be exempt 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. Response 3 and 4 For Response 3 the School provided responsive records. With respect to Response 4, although records were provided the School failed to claim an exemption with specificity with respect to redactions made. Order I find the School has failed meet its burdens of specificity in withholding and redacting public records. Accordingly, the School is hereby ordered, within ten (10) days ofthis order, to provide Mr. Viglione 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 (1 0) days provide to Mr. Viglione 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 ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist in requesting and responding to requests for public records please refer 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

Mr. Mark E. Rumley, Esq. SPR16/108 Page 4 March 11, 2016 conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determi · for further information. A. Williams visor of Records cc: Mr. Joseph Viglione