Jim Haddadin v. Framingham, City of - Public Schools Department (SPR 20170015)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 12, 2017 SPR17/015 Edward J. Gotgart, Ed.D. Acting Superintendent of Schools Town of Framingham-Public Schools 73 Mount Wayte Avenue, Suite #5 Framingham, MA 01702 Dear Dr. Gotgart: I have received the petition of Jim Haddadin of Metro West Daily News on behalf of his colleague Brittany McNamara appealing the response of the Town of Framingham-Public Schools (Schools) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, the Metro West Daily News requested to inspect or obtain a copy of: 1. Minutes of the School Committee's executive session meeting of May 31, 2016, 2. The notification from the School Committee to Stacy Scott that his Superintendent contract would not be renewed, and 3. Any agreements or contracts the School Committee authorized or entered into with the Superintendent, on behalf of itself or the School District between September 1, 2015 to the present (October 7, 2016, the date ofthe request). In an October 7, 2016 response, the Schools denied Ms. McNamara's public records request for executive session minutes pursuant to the Open Meeting Law, and the notification and severance/settlement agreement pursuant to the personnel clause of Exemption (c) ofthe Public Records Law. Mr. Haddadin appealed on behalf of Ms. McNamara. 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). 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

Dr. Edward J. Gotgart SPR17/015 Page 2 January 12, 2017 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 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, § 1O (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. Open Meeting Law The Schools informed Ms. McNamara that the purpose for entering into an executive session concerning the former Superintendent has not ceased, but that minutes are regularly reviewed to determine whether the purpose no longer exists. Please be advised that the authority to render determinations on the tenets of the Open Meeting Law rests with the Division of Open Government in the Office of the Attorney General. Therefore, this office must decline to render a determination on whether the purpose for the executive session has been extinguished. Exemption (c) -personnel clause The Schools are withholding a record notifying the former Superintendent that his position would not be renewed and a severance/settlement agreement with a former School Superintendent pursuant to Exemption (c) of the Public Records Law. A review of Exemption (c) is appropriate. Exemption (c) contains two clauses to permit 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

Dr. Edward J. Gotgart SPR17/015 Page 3 January 12, 2017 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. 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 ofthe Real Prop. Dep't of Boston, 3 80 Mass. 623, 625 (1980). Examples of "intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family fights 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 ofExemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. Notification to former Superintendent The Schools have failed to support its Exemption (c) claim that a notification to the now former Superintendent is personnel information in its entirety. Where the notification is a simple correspondence or communication from the Schools or School Committee that the contract would not be renewed, the record cannot be withheld in its entirety. It is a public record that may be subject to redaction under Exemption (c). Severance/settlement agreement This office has consistently found that contracts and settlement agreements are public records and may not be withheld entirely pursuant to either the first or second clause of Exemption (c) of the Public Records Law. Several decisions by Massachusetts courts support the notion that settlement agreements are public records that must be disclosed, but may be

Dr. Edward J. Gotgart SPR17/015 Page 4 January 12, 2017 redacted. See Champa v. Weston Public Schools, 473 Mass. 86 (2015); see also Memorandum of Decision and Order in the matter between Emily Bazelon and the Town of South Hadley, Civil Action No. 11-212; see also Globe Newspaper Company, Inc. v. Executive Office of Administration and Finance, et al, Suffolk Superior Court Civil Action No. 11-01184-A (June 14, 2013), 34-35. The parties in the above-captioned matter agreed to refrain from further appeal via a December 17 , 2013 letter agreement. Settlement agreements are public records, subject to redaction. Personnel, medical and/or privacy information subject to withholding pursuant to the first and second clause of Exemption (c) does not render a settlement agreement exempt in its entirety. The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Therefore, I find the Schools have not overcome the presumption that the responsive settlement agreement is public, subject to redaction. An attorney on my staff contacted your office, but was unable to connect with you directly. In your absence, my staff member did speak to Nancy Piasecki, informing Ms. Piasecki of the existence of this appeal and that the requested records are public records, subject to possible redaction pursuant to Exemption (c). Order I find the Schools have failed to properly respond to a request for public records. Accordingly, the Schools are hereby ordered to provide Mr. Haddadin with the responsive notice to the former Superintendent and the severance/settlement agreement, redacted where applicable under Exemption (c) and in a manner consistent with this order, the Public Records Law and its Regulations. If the Schools are assessing any fees in complying with this request, Mr. Haddadin should be provided with a written, good faith estimate. If the Schools provide any cover letter to accompany the records, 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. Sincerely, Rebecca S. Murray Supervisor ofRecords cc: Jim Haddadin