Owen and Becky Neville v. Acton-Boxborough Regional School Committee (SPR 20171694)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 201 7 SPR17/1694 Beth Petr Records Access Officer Acton-Boxborough Regional School District 16 Charter Road Acton, MA O1 720 Dear Ms. Petr: I have received the petition of Owen and Becky Neville appealing the response of the Acton-Boxborough School Committee (School Committee) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. and Mrs. Neville requested a copy of the October 19, 2017 executive session minutes and documents used at the School Committee's executive session meeting. Unsatisfied with the School Committee's response, Mr. and Mrs. Neville petitioned this office. As a result, this administrative appeal was opened. 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. The December fh response of the School Committee The School Committee's December 7th response indicated, "[d]ue to a new development since these documents were reviewed by the School Committee, our counsel has advised us to 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

Beth Petr SPR17/1694 Page 2 December 22, 2017 redact these executive session minutes and withhold the documents used." The School Committee is withholding content from the executive session minutes, and withholding all the records used by the School Committee during the executive session on October 19, 2017, in their entirety, pursuant to Exemption (c) of the Public Records Law. 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, 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 Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). Second clause of (c) -privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017).

Beth Petr SPRl 7/1694 Page 3 December 22, 2017 The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA , 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The School Committee claimed Exemption ( c) without any specification as to how the exemption applies to the redacted executive session minutes and the withheld records. In addition, the School Committee has not explained what records are being withheld and why these records cannot be redacted and provided to Mr. and Mrs. Neville. Burden of specificity - Duty to segregate The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § IO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The School Committee did not meet its burden of demonstrating how the content within the minutes, and the related records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The School Committee also has a duty to segregate those portions of a record that are specifically exempt from disclosure, and provide the balap_ce of the record. G. L. c. 66, § lO(a). It is my understanding that an attorney in the Public Records Division contacted you about this appeal. Conclusion Accordingly, the School Committee is hereby ordered to provide Mr. and Mrs. Neville with a supplemental response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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. and Mrs. Neville may appeal the substantive nature of the supplemental response within ninety calendar days. 950 C.M.R. 32.08(1).

Beth Petr SPRl 7/1694 Page4 December 22, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Owen and Becky Neville (via email) Peter L. Ebb, Esq., Ropes & Gray, LLP