Colman Herman v. Wayland, Town of - Public Schools (SPR 20171751)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 8, 2018 SPR17/1751 Arthur Unobskey, Ed.D. Superintendent of Schools Town of Wayland - Public Schools 41 Cochituate Road Wayland, MA 01778 Dear Superintendent Unobskey: I have received the petition of Colman Herman appealing the response of the Town of Wayland Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on December 17, 2017, Mr. Herman requested to set up time to view "any and all documents that contain the amount of the financial penalty imposed on" an identified individual. The School provided a response on December 22, 201 7, in which it denied access to responsive records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the School's response, Mr. Herman petitioned this office and this appeal, SPRl 7 /1751, was opened as a result. 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, § 1 O(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. 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 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

Arthur Unobskey, Ed.D. SPRl 7/1751 Page 2 January 8, 2018 records custodian must provide the responsive records. The School's December 22nd response In its December 22nd response, the School indicated that it understood Mr. Herman's request "to be in reference to the 'financial penalty' referred to in the December 12, 2017 Public Education Letter issued by the State Ethics Commission in connection with its preliminary inquiry into an issue self-reported by" the identified individual. The School indicated that the only record responsive to Mr. Herman's request in its possession "is a document which is not subject to disclosure under the Public Records Law, M.G.L. c. 4, § 7(26). The basis for withholding this document is exemption (c) ... (exempting 'personnel and medical files or information')." The School then cites the Wakefield case to support its decision to withhold the record. Exemption (c) The School's December 22nd response indicated that it withheld a record pursuant to the first clause of Exemption (c) of the Public Records Law. 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 Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). 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

Arthur Unobskey, Ed.D. SPR17/1751 Page 3 January 8, 2018 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. of Westport, 401 Mass. 306, 309 (1987). The School's initial December 22nd response does not provide sufficient detail on how the first clause of Exemption ( c) applies to the responsive record. Based on its response, it is unclear how the responsive record is a personnel file or information under Exemption ( c ), as claimed. The fact that the record may be held in a personnel file does not render the record completely exempt as a personnel record under Exemption (c). See Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. 1, 5 (2003) (concluding that the term "personnel file or information" in Exemption ( c) derives its meaning from the nature or character of the document, not from its label or its repository). Also, the School has not sufficiently explained whether any private personal information would be disclosed or how the record is one of the core categories of personnel information that is useful in evaluating and making employment decisions regarding the identified individual. The School must specify this information for a valid application of Exemption ( c ). It is also unclear how the responsive record may be withheld in its entirety. Under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory 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); see also G. L. c. 66, § lO(a). Further, the School's response to Mr. Herman does not provide any explanation of what record concerning the identified individual it has in its possession. Although the School indicated that it withheld a responsive record, it is unclear what type of record the School is withholding. To deny access to a record under the Public Records Law, a records access officer (RAO), must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the School withheld a record without identifying the record. Therefore, the School must identify the type of record it has in its possession. I understand a Public Records Division staff attorney contacted your office about this appeal and you indicated the School would provide a supplemental response to Mr. Herman. Conclusion Accordingly, whereas the School has indicated that it will provide a supplemental response, I will now consider this administrative appeal closed with the proviso that the School provides said response 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

Arthur Unobskey, Ed.D. SPRl 7/1751 Page 4 January 8, 2018 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 of Records cc: Colman Herman