Owen and Becky Neville v. Acton-Boxborough Regional School Committee (SPR 20180059)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

January 25, 2018 SPR18/059

Beth Petr

Records Access Officer

Acton-Boxborough Regional School Committee 16 Charter Road , Acton, MA 01720

Dear Ms. Petr:

I have received the petition of Owen and Rebecca Neville appealing the response of the Acton-Boxborough Regional School Committee (School Committee) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. and Mrs. Neville requested a copy of the executive session minutes and documents used at the October 19, 2017 School Committee meeting. The School Committee provided Mr. and Mrs. Neville with a redacted copy of the executive session minutes, and withheld, in their entirety, the documents

used by the School Committee pursuant to the second clause of Exemption (c) of the Public Records Law.

Previous appeal

The responsive executive session minutes and documents used at the October 19, 2017 executive session meeting were the subject of a previous appeal. See SPR17/1694 Determination of the Supervisor of Records. In my determination, I found that the School Committee did not meet its burden of specificity in withholding the executive session minutes and documents used at the school committee’s executive session meeting, in their entirety, pursuant to Exemption (c). As a result, I ordered the School District to provide Mr. and Mrs. Neville with a response to support its Exemption (c) claim to withhold the minutes and documents.

In a January 11, 2017 response, the School Committee claimed the second clause of Exemption (c) to withhold content from the minutes, and to withhold, in their entirety, the documents used at the October 19" meeting. Mr. and Mrs. Neville appealed, and SPR18/059 was opened.

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 SPR18/059 Page 2 January 25, 2018

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, § 10A(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, § 10(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).

The December 22" response of the School Committee

In its December 22™ response, the School Committee states that the executive session minutes were redacted and documents used at the October 19" meeting were withheld under the second clause, the privacy clause, of Exemption (c) of the Public Records Law. The School Committee indicates it voted to release the minutes; however, a private citizen raised a concern that disclosure of the minutes and documents would violate their privacy rights. As a result, the School Committee asserted it redacted the minutes and entirely withheld the documents pursuant to the privacy clause of Exemption (c).

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 and medical information that relates to an identifiable individual and is of a “personal nature.” Id. at 434. The School Committee has claimed only the second clause of Exemption (c) applies to the requested minutes and documents. Therefore, this determination will focus on the second clause of Exemption (c).

Beth Petr SPR18/059 Page 3 January 25, 2018

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).

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).

The School Committee’s January 11" response claims that disclosure of the redacted portions and disclosure of all the documents used by the School Committee at its October 19" executive session would adversely affect a particular citizen’s reputation. The citizen informed the School Committee that release of the content of the minutes and the documents used would improperly impair their reputation and cause them unwarranted embarrassment. You contend that the documents and redacted portions of the minutes reflect a dispute between the citizen and ~ the School Committee concerning certain statements made by one or more School Committee members.

It is still unclear from the School Committee’s December 7" and J anuary 1 1" responses whether the statements, redacted portions of the executive session minutes, and the documents used at the meeting contain information that a person of normal sensibilities would consider “intimate details of a highly personal matter.”

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, 477 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.

Beth Petr SPR18/059 Page 4 January 25, 2018

The third part of the PETA test considers whether the information is available from other sources. Id. The School Committee’s January 11" response states, “the underlying statements concern matters of at least some public interest, the statements are all already matters of public record. The citizen’s position is that the statements unfairly disparage him, and the proposals made to ameliorate that alleged disparagement; however, involve only the citizen’s personal interest, as a private citizen.” The School Committee has yet to demonstrate the extent of the privacy invasion or the nature of the dispute that it discussed at the October 19" meeting. The School Committee writes, “we can think of no matter of importance (other than the underlying facts already in the public domain) weighing in favor of disclosure... it cannot be said that the public’s interest in obtaining the requested records substantially outweighs the seriousness of any invasion of privacy.” I find that the School Committee has not met its burden to withhold the records under the privacy clause of Exemption (c).

In Camera Inspection of Records

It is the finding of this office that an in camera review of an un-redacted copy of the responsive records withheld under Exemption (c) would facilitate a determination as to the applicability of the exemption claim made by the School Committee. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and 1 issue an opinion on the public or exempt nature of the record.

The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community.

Order

Accordingly, you are hereby ordered to provide this office with an unredacted copy of the

Beth Petr SPR18/059 Page 5 January 25, 2018

responsive records withheld under Exemption (c) without delay. The School Committee may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Sincerely,

Abicca Muay

Rebecca S. Murray Supervisor of Records

cc: Owen and Rebecca Neville Peter L. Ebb, Esq., Ropes and Gray, LLP