Allen Nitschelm v. Acton-Boxborough Regional School District (SPR 20160880)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 24, 2016 SPR16/880 D. M. Moschos, Esq. Mirick, O'Connell, DeMallie & Lougee, LLP 100 Front Street Worcester, MA 01608 Dear Attorney Moschos: This office has a received a petition from Allen Nitschelm of the Acton Forum appealing Acton-Boxborough Regional School District's (School) response to his request for public records. See G. L. c. 66, § lO(b); see also 950 C.M.R. 32.08(6). Specifically, Mr. Nitschelm requested a copy of a letter dated January 16, 2015 referenced in a settlement agreement. Previous appeal and determinations This request is related to the subject of previous appeals and determinations. See SPR15/651 Determination of the Supervisor of Records (October 5, 2015); SPR15/827 Determinations of the Supervisor of Records (December 31, 2015; February 8, 2016; June 30, 2016); SPR16/682 Determinations of the Supervisor of Records (September 16, 2016). These prior determinations pertained to redactions within a settlement agreement between the School and a specific individual. In the June 30 determination I found the School had not met its burden to justify the first redaction on page one (1) and the redaction on page ten (10) of the agreement under the Public Records Law. I ordered the School to provide a revised written response to the request, prepared in a manner consistent with this order, the Public Records Law and its Access Regulations (Regulations). The School provided a response to this order in a letter dated July 15, 2016 in which it provided the agreement without the aforementioned redactions. Current appeal The removal of these redactions revealed the existence of a letter dated January 16, 2015. Mr. Nitschelm requested this letter in an email dated July 16, 2016. The School denied access to this record under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

D.M. Moschos, Esq. SPR16/880 Page2 October 24, 2016 Subsequently, Mr. Nitschelm informed this office he objects to this response and requests this office take further action. In my September 16 determination, I ordered the School to provide this office with an unredacted copy of the responsive letter for in camera review. The authority to require the submission of records 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. The School provided this record for in camera review and I would like to thank it for its cooperation. 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, § lO(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. Exemption (c) In a response dated July 22, 2016, as well as a cover letter associated with the provision ofrecords for in camera review, you claim the responsive letter may be withheld under the personnel clause of Exemption (c). 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

D.M. Moschos, Esq. SPR16/880 Page 3 October 24, 2016 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. Sch. 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. Conclusion In light of the School's responses and my in camera inspection of the record, I find the School has met its burden of explaining how the responsive letter dated January 16, 2015 is a document that is useful in making employment decisions. Accordingly, I find the School may withhold this record under the personnel clause of Exemption (c). See Wakefield, 431 Mass. at 798. cc: Mr. Allen Nitschelm