Dana Manning v. Tantasqua Regional & Union 61 School District (SPR 20160723)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 20, 2016 SPR16/723 Dr. Erin M. Nosek Superintendent of School Tantasqua Regional & Union 61 School District 320A Brookfield Road Fiskdale, MA 01518 Dear Dr. Nosek: I have received the petition of Dana Manning appealing the response of Tantasqua Regional & School Union 61 Districts (School) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Manning requested thirteen (13) categories of records related to a particular incident. In a letter dated August 16, 2016 the School responded to these requests by providing certain records, but withholding others under Exemptions (c) and (o) of the Public Records Law. G. L. c. 4, § 7(26)(c), (o). Ms. Manning appealed this response. 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, § lO(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). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § lO(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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). To meet the specificity requirement a custodian must not only OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Dr. Erin M. Nosek SPR16/723 Page 2 September 20, 2016 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, § IO( 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 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. The School's August 16 response In the School's August 16 response, you indicate the School provided records responsive to certain categories of records. Ms. Manning indicates in her appeal petition, however, that she objects to the School's responses to the following categories ofrecords: three (3), four (4), five (5), seven (7), eight (8), twelve (12), and thirteen (13). Items seven (7) and eight (8) With respect to items seven (7) and eight (8), the School provided responsive names of individuals, but withheld addresses and home phone numbers under Exemption (o). It should be noted that Exemption ( o) applies to records that contain the home address or telephone number of an employee while identifying the individual as a government employee. Therefore, the School may redact the home addresses or telephone numbers only ifthe responsive record identifies the individual as employed by the School. I find the School has not met the burden of explaining how Exemption ( o) applies to withhold records responsive to items seven (7) and eight (8). Items three (3), four (4), five (5), twelve (12), and thirteen (13) With respect to items three (3), four (4), five (5), twelve (12), and thirteen (13), the School explains "to the extent that such records exist, the records are part of the individual's personnel record and, therefore, such information is exempt from disclosure under [E]xemption ( c) to the Public Records Law. ..." Exemption ( c) permits the withholding of:

Dr. Erin M. Nosek SPR16/723 Page 3 September 20, 2016 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). 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. Nevertheless, 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 of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). I find the School has not met its burden of explaining how Exemption ( c) applies to the withheld records. Further, it is unclear whether the School possesses records responsive to items three (3), four (4), five (5), twelve (12), and thirteen (13). It should be noted that the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 4, § 7(26). The Town must confirm whether any responsive records exist. If the Town intends to withhold any such records, it must specifically explain the applicability of an exemption. See Flatley, 419 Mass. at 511. I understand an attorney on my staff contacted you about this matter and provided a copy of Ms. Manning's appeal petition to this office. You indicated the School would provide a supplemental response that addresses these issues.

Dr. Erin M. Nosek SPR16/723 Page4 September 20, 2016 Conclusion Accordingly, I will consider this appeal closed with the proviso that the School provide Ms. Manning with a 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 t · office at pre@sec.state.ma.us. cc: Ms. Dana Manning