Auditi Guha v. Greater New Bedford Regional Vocational Technical High School (SPR 20160189)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 23,2016 SPR16/189 Mr. Joshua R. Coleman, Esq. Collins, Loughran & Peloquin, P.C. 320 Norwood Park South Norwood, MA 02062 Dear Attorney Coleman: I have received the petition of Auditi Guha, on behalf of the New Bedford Standard Times, appealing the response of the Greater New Bedford Regional Vocational Technical High School (School) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Guha requested the settlement agreement between the School and a former employee. You denied her request, claiming that the responsive record "constitutes a personnel matter subject to exemption G.L. c. 4, §7 clause 26(c) and disclosure of such may constitute an unwarranted invasion of personal privacy." 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (c) The School denied a request for a settlement agreement with a former School employee pursuant to Exemption (c) of the Public Records Law. A review of Exemption (c) is appropriate. Exemption (c), the so-called privacy exemption, contains two clauses to permit 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Joshua R. Coleman, Esq. SPR16/189 Page2 March 23, 2016 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. The Supreme Judicial Court of Massachusetts has 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. 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 fights 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. Settlement agreements are public records, subject to redaction This office has consistently found that settlement agreements are public records, and may not be withheld entirely pursuant to either the first or second clause of Exemption (c) of the Public Records Law. Several decisions by Massachusetts courts support the notion that settlement agreements are public records that must be disclosed, but may be redacted. See Champa v. Weston Public Schools, 473 Mass. 86 (2015); see also Memorandum of Decision and Order in the matter between Emily Bazelon and the Town of South Hadley, Civil Action No. 11-

Mr. Joshua R. Coleman, Esq. SPR16/189 Page 3 March 23, 2016 212; see also Globe Newspaper Company, Inc. v. Executive Office of Administration and Finance, et al, Suffolk Superior Court Civil Action No. 11-01184-A (June 14, 2013), 34-35. The parties in the above-captioned matter agreed to refrain from further appeal via a letter agreement dated December 17, 2013. Confidentiality clause does not alone render a public record exempt from disclosure 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. Department of Health and Human Services, 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 oflnformation Act with a private agreement). Therefore, a confidentiality clause in a settlement agreement cannot be used to circumvent the mandatory disclosure provision of the Public Records Law. Order Settlement agreements are public records, subject to redaction. Personnel, medical and privacy information subject to withholding pursuant to the first and second clause of Exemption (c) does not render a settlement agreement exempt in its entirety. The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 3 78 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). I find the School has not overcome the presumption that the responsive settlement agreement is a public record, subject to redaction. Accordingly, the School is hereby ordered, within ten (1 0) days ofthis order, to provide Mr. Guha with a response to the request, prepared 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, in its response, provide a written explanation, with specificity, how a particular exemption applies to each redacted portion of the responsive 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. Joshua R. Coleman, Esq. SPR16/189 Page 4 March 23, 2016 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 ge eral questions regarding the Public Records Law. In addition, members of my staff will visit a r ords custodian in person to conduct training workshops on the Public Records Law upon equest. Please contact my office directly at the telephone number provided in this det i tio for further information. cc: Ms. Auditi Guha