Jonathan Dame v. Newton, City of - Public Schools (SPR 20160529)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 11, 2016 SPR16/529 Superintendent David Fleisman City ofNewton- Public Schools Committee 100 Walnut Street Newton, MA 02460 Dear Superintendent Fleisman: I have received the petition of Jonathan Dame of the Newton Tab appealing the July 5, 2016 response of the City of Newton- Public Schools Committee (Committee) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Dame requested a copy of a report regarding graffiti incidents at Day Middle School. In response the Committee provided a copy of the responsive record redacted pursuant to the privacy exemption ofthe Public Records Law. G. L. c. 4, § 7(26)(c). Previous determination This request was subject of a prior appeal to this office by Mr. Dame. See SPR16/374 Determination ofthe Supervisor ofRecords (June 21, 2016). In that order I found the Committee had not met the burden of specificity to permit redactions to the extent claimed by the Committee. I closed SPR16/374 with the proviso that the Committee provide a revised response, prepared in a manner consistent with the order. The Committee provided a July 5, 2016letter in response to the order and Mr. Dame appealed. This appeal (SPR16/529) was opened as a result. The Public Records Law 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Superintendent David Fleisman SPR16/529 Page 2 August 11, 2016 applicability of an exemption). 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. 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 request. Please contact my office directly at the telephone number provided in this determination for further information. July 5 response fails to show relation between cited case law and present request As stated in my prior order, 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 (emphasis added). In its July 5 response, the Committee indicates the responsive record "contains disciplinary recommendations and analysis of an employee's performance or conduct," and is therefore exempt pursuant to Exemption (c) as interpreted by the Wakefield Court. This response, however, does not provide the further specificity mandated by my June 21 order. While the response again cites Exemption (c) of the Public Records Law, the letter fails to state how the redacted information relates to a particular, identified employee. Exemption (c) applies to information that relates to an identifiable individual. See Boston Retirement Bd., 388 Mass. at 432-33. It is also important to note that the matter discussed in Wakefield related to a single, specifically identified person. It is possible that multiple individuals are identified in the record requested by Mr. Dame. Accordingly, I find the Committee has failed to meet its burden to justify such extensive redactions. See Wakefield, 431 Mass. at 798. Order I find the Committee has not met its burden of specificity to withhold the entirety of the redacted information under the first clause of Exemption (c). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are

Superintendent David Fleisman SPR16/529 Page 3 August 11, 2016 not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Accordingly, the Committee is hereby ordered to provide Mr. Dame with a revised response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. In the alternative, in order to facilitate my review of the matter, the Committee may provide this office with an unredacted copy of the responsive record for in camera review along with an explanation of its position regarding the applicability of the claimed exemptions to the responsive 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); see also G.L.c. 66, § 1. Records 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 her 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. Custodian.s submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records 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. Supervisor of Records cc: Mr. Jonathan Dame