Ellen Ishkanian v. Newton, City of - Public Schools (SPR 20160583)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords DATE, 2016 SPR16/583 Mr. David M. Connelly, Esq. Morgan, Brown & Joy LLP Attorneys at Law 200 State Street Boston, MA 021 09 Dear Attorney Connelly: I have received the petition of Ellen Ishkanian of The Boston Globe appealing the response of the Newton School Committee (Committee) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Ishkanian requested a copy of a report prepared regarding graffiti incidents at Day Middle School. In a response dated May 6, 2016, the Committee provided a redacted version of the responsive record. The Committee redacted information pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Ms. Ishkanian appealed the redactions. 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, § 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). 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. If there are any fees associated with a 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. David M. Connelly, Esq. SPR16/583 Page 2 August 18, 2016 provide written good faith estimate). Once fees are paid, a records custodian 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 request. Please contact my office directly at the telephone number provided in this determination for further information. Exemption (c) The Committee redacted certain information within the responsive record under the first clause of Exemption (c) of the Public Records Law. Exemption (c) permits the 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) 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). Due to the Committee's response, only the first clause is relevant to this determination. 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. There is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part

Mr. David M. Connelly, Esq. SPR16/583 Page 3 August 18,2016 of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. ofWestport, 401 Mass. 306, 309 (1987). In its May 6 response, the Committee indicates "portions of the report delineating the 'related reaction, action, or lack of action by administrators or faculty involved or knowledgeable about one or more anti-Semitic incidents' are not public records." The Committee claims those portions are "personnel records, as the information contained therein pertains to specific and identifiable employees and would be considered useful in making employment decisions regarding those employees." As a result, you claim portions of the responsive record are exempt from disclosure under the first clause of Exemption (c). The Committee's May 6 response does not contain the specificity required in a denial of access to public records. While it cites Exemption (c), it does not explain the exemption's applicability to large portions of redacted information, particularly because the first clause of Exemption (c) applies to information that relates to an identifiable individual. See Boston Retirement Bd., 388 Mass. at 432-33. Further, it is unclear how the entirety of the withheld information is "useful in making employment decisions" about a particular employee. See Wakefield, 431 Mass. at 798. 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 Ms. Ishkanian. Accordingly, I find the Committee has failed to meet its burden to justify such extensive redactions. See id; Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). I understand an attorney on my staff contacted you about this matter and provided a copy of the file associated with this appeal. Order Accordingly, the Committee is hereby ordered to provide Ms. Ishkanian 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,

Mr. David M. Connelly, Esq. SPR16/583 Page4 August 18, 2016 § 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. Custodians 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. Please be advised that, unlike the materials provided for in camera review, any additional correspondence by the Committee to this office provided to clarify exemption claims would be placed in the file for this appeal and would be subject to public disclosure as a public record. Supervisor of Records cc: Ms. Ellen Ishkanian Superintendent David Fleishman