Philip Demers v. Adams-Cheshire Regional School District (SPR 20160197)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April1, 2016 SPR16/197 Mr. Paul Butler Chairman, School Committee Adams Cheshire Regional School District 191 Church Street Cheshire, MA 01225 Dear Mr. Butler: I have received the petition of Philip Demers, Staff Reporter for the Berkshire Eagle appealing the response of Adams Cheshire Regional School District (District) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Mr. Demers requested a number of records pertaining to "the recent resignation of [the] Adams Cheshire Regional School District Superintendent." The District responded by providing partial records and denied others; Mr. Demers appealed. 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, § 1 0(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). In your March 10, 2016 written response, you stated "minutes and supporting documents ... are exempted from disclosure" citing Exemption (c) of the Public Records Law. G. L. c. 4, § 7 (26) (c). In this denial you further explained that the "stated purpose for the executive session was to discuss the reputation, character, physical condition or mental health, rather than the professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member, or individual." OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Paul Butler SPR161197 Page2 April1, 2016 Exemption (c) for withholding records The District is withholding the entire record from the February 4, 2016 meeting pursuant to Exemption (c) of the Public Records Law. 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

Mr. Paul Butler SPR16/197 Page 3 Aprill, 2016 determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. Failure to state applicability of exemption; failure to disclose non-exempt portion of records In citing Exemption (c) the District failed to explain why the withheld meeting materials must be entirely withheld. Further, the District failed to state with specificity the portions of the records that are to be withheld as each relates to a particular clause of Exemption (c). Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). 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. Failure to state with specificity exemptions related to other responsive records In its response the District stated "to the extent [Mr. Demers'] request would include communications with legal counsel for the purpose of obtaining legal advice or assistance, materials are exempt from disclosure as they are protected under the rule of attorney client privilege." Further, with respect to "2016letters, memos, electronic messages" that are responsive, you stated that "to the extent it is not exempt from disclosure under applicable law" such records would be provided. This response is not in compliance with the specificity requirements of the Public Records Law and applicable common law. A records custodian is required to use their superior knowledge of the contents of their files to assist in promptly complying with the request. 950 CMR 32.05(4 ). It is not clear from this response whether any records responsive to this portion of the request were withheld, and if so the exemptions applicable to such withholding. Order I find the District has failed to state with specificity the applicability of common law and statutory exemptions in response to a request for public records. Accordingly, the District is hereby ordered, within ten (1 0) days of this order, to review the records responsive to Mr. Demers' request and provide Mr. Demers with a written response, prepared in a manner consistent with this order, the Public Records Law, its Access Regulations and applicable case law. If the District maintains that any portion of the responsive records are exempt from disclosure it must provide to Mr. Demers 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. Paul Butler SPR16/197 Page4 April1, 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 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 equest. Please contact my office directly at the telephone number provided in this determinatio fo further information. cc: Mr. Philip Demers