Jeffrey M. Hull v. Wilmington, Town of - Public Schools (SPR 20170025)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 9, 2017 SPR17/025 Andrew J. Waugh, Esq. Counsel for the Wilmington School Committee Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Waugh: I have received the petition of John Foskett, Esq. of the law firm Deutsch Williams appealing the response of Town of Wilmington--Public Schools (School) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Jeffrey M. Hull, Town Manager requested a copy of a separation agreement between the School and a specifically identified individual, as well as "any and all other documents" related to the individual's "separation or termination as employee" of the School. The School responded in a letter dated December 2, 20 16 in which it withheld portions of a separation agreement. The School withheld information under Exemption (c) ofthe Public Records Law. G. L. c. 4, § 7(26)(c). This request was the subject of a previous appeal. See SPR16/123 7 Determination of the Supervisor of Records (December 27, 2016). This office closed SPR16/1237 by ordering the School to provide this office with complete redacted and unredacted copies ofthe responsive records for in camera inspection. 950 C.M.R. 32.08(4). The School provided an unredacted copy of the responsive separation agreement in its entirety for in camera inspection. I would like to thank the School for its cooperation. The School also confirmed "[n]o other documents exist that are related to the specifically named individual's separation or termination as an employee of the school district." 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, § IOA(d); 950 C.M.R. 32.03(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

Andrew J. Waugh, Esq. SPR17/025 Page 2 January 9, 2016 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. Exemption (c) In its December 2 response the School withheld portions of the responsive record under the first clause of Exemption (c). 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). 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 ' infonnation 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 courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). , 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. ofWestport, 401 Mass. 306, 309 (1987).

Andrew J. Waugh, Esq. SPR17/025 Page 3 January 9, 2016 Upon in camera review of the entirety of the responsive record, I find portions of the withheld information have not been supported by the School's exemption claims. I understand an attorney on my staff contacted you and you indicated the School would provide Mr. Hull a less redacted version of the responsive record. Conclusion Accordingly, I will consider this appeal closed with the proviso that the School provide Mr. Hull with a response to the request, provided 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. Mr. Hull may appeal the substantive nature ofthe School's response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: John Foskett, Esq. Jeffrey Hull Julie Broussard Joanne Benton