Ronald Alexander v. Wellesley, Town of - Public Schools (SPR 20171605)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 20, 2017 SPR17/1605 Judith Belliveau Assistant Superintendent for Finance & Operations Town of Wellesley-Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Belliveau: I have received the petition of Ronald Alexander appealing the response of the Wellesley Public Schools (School) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on August 17, 2017, Mr. Alexander requested "to Inspect All Documents .in [an identified] Superintendent's Personnel File." Mr. Alexander scheduled a time to inspect the records on September 7, 2017. However, he was denied access to certain portions of the responsive records and he appealed. It appears Mr. Alexander is only appealing the School's denial of the 2015 survey records withheld pursuant to Exemption ( c) of the Public Records Law. G. L. C. 4, § 7(26)(c ). - 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, § lOA(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). 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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. 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

Judith Belliveau SPRl 7/1605 Page2 November 20, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The School's August 3pt response The School indicates that the identified Superintendent's personnel file includes "results of a survey completed in 2015" and "continuing education certifications and letters of completion related to professional development trainings." The School indicates that a 2015 survey disseminated to parents and members of the community received a low response rate. As a result of the small sample size, the School decided not to schedule a public meeting to discuss the survey responses. However, the School reviewed specific survey responses to the identified Superintendent and placed the responses in the identified Superintendent's personnel file. Therefore, the survey is "protected from release under Exemption (c)." The School cites Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792 (2000) which "identified 'employee work evaluations' as one of the 'core categories of personnel information that are 'useful in making employment decisions regarding an employee.' 431 Mass. at 798. While the exact boundaries of what constitutes protected personnel information may be undecided, the SJC clearly includes work evaluations within the class of documents protected from disclosure under Exemption (c)." The School asserts that "Exemption ( c) applies to all personnel information, not just those records created by municipal employees with supervisory authority over an employee .... The exemption applies broadly in recognition of the sensitive nature of these documents and the need to make employment decisions .... The Committee distributed the survey with the goal of obtaining feedback from the community of the [identified Superintendent's] job performance. The Committee did not ask the public to evaluate any other employee as part of this survey. Every survey response pertains to an identifiable individual" and his or her job performance. The School asserts that "[t]he survey responses were useful in making employment decisions .... While the responses and feedback originated from the public, as opposed to Committee members or department staff, the survey results are no less employment evaluations of the [identified Superintendent]. Exemption ( c) protects all employment evaluations, not just those prepared by Town employees .... The Committee believes strongly that it could use the survey results in the future in making determinations about the [the identified Superintendent's] position in the Wellesley Public Schools system." Exemption (c) In the School's August 31st response, it indicated it withheld from disclosure 2015 survey responses under the first clause of Exemption ( c) of the Public Records Law because they constitute employee work evaluations.

Judith Belliveau SPRl 7/1605 Page 3 November 20, 2017 Exemption (c) applies to: 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, relevant to this appeal, creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). 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). Wakefield Teacher Ass'n, 431 Mass. at 798. 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 NewspaperCo., 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, 401 Mass. at 306, 309. Although public employees have a diminished expectation of privacy in matters relating to their official responsibilities, some information concerning a public employee's employment has been found to be sufficiently personal to be exempt from mandatory disclosure. In Connolly, the court found that employment information that is specifically evaluative in nature constitutes "personnel information" exempt from disclosure under the first clause of Exemption (c). Connolly v. Bromery, 15 Mass. App. Ct. 661, 664 (1983). The court reasoned that such evaluations were to guide employees toward self-improvement and to assist the employer in making personnel decisions such as reappointment, promotion, merit raises, and tenure. Id. at 663. Given that the survey was issued to the public with the goal of obtaining additional information that would be helpful for its review of the identified Superintendent's job performance, I find the School may permissibly withhold the 2015 survey responses as they constitute employee work evaluations. I understand a Public Records Division staff attorney contacted your office about this appeal.

Judith Belliveau SPRl 7/1605 Page 4 November 20, 2017 Conclusion Accordingly, whereas I find the School may permissibly withhold the 2015 survey results because they constitute employee work evaluations which may be permissibly withheld from disclosure pursuant to Exemption (c ) , I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ronald Alexander