Colman Herman v. Wayland, Town of - Public Schools (SPR 20180101)

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

Rebecca S, Murray Supervisor of Records

February 6, 2018 SPR18/101

Arthur Unobskey, Ed.D. . Superintendent of Schools

Town of Wayland Public Schools

41 Cochituate Road; P.O. Box 408

Wayland, MA 01778

Dear Dr. Unobskey:

I have received the petition of Colman M. Herman appealing the response of the Town of Wayland Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Mr. Herman requested “any and all documents that contain the amount of the financial penalty imposed on an identified individual.” In a December 22, 2017

response, the School denied the request pursuant to the first clause of Exemption (c) of the Public Records Law.

Previous appeal

The requested record was the subject of a previous appeal. See SPR17/1751 Determination of the Supervisor of Records (Supervisor) (January 8, 2018). I closed SPR17/1751 with the proviso that the School provide a supplemental response that identifies the records the School is withholding and specifically explains how the records fall under one of the core categories of personnel information relating to the identified individual pursuant to Exemption

(c).

The School provided a response on January 22, 2018 which states that the School has a one-page disciplinary letter from the identified former Superintendent of Schools to the identified individual that is being withheld as disciplinary documentation under the first clause of Exemption (c). Unsatisfied with the January 22" response, Mr. Herman petitioned this office and the current appeal was opened.

The Public Records Law

The Public Records Law strongly favors disclosure by creating a presumption that all

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

Dr. Arthur Unobskey SPR18/101 Page 2 February 6, 2018

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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based...””); 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 School’s January 22" response

{In its January 22nd response, the School indicated that the School has one document responsive to the request; a one-page disciplinary letter from the former School Superintendent to the identified individual, which the School considers a personnel record exempt from disclosure under the first clause of Exemption (c).

Exemption (c) _ 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).

Dr. Arthur Unobskey SPR18/101 Page 3 February 6, 2018

The School’s January 22™ response indicates that “[t]he withheld record is a one-page disciplinary letter from former Superintendent of Schools Paul Stein to [the identified individual], and is withheld pursuant to the first category of Exemption (c) (‘personnel and medical files or information’).” You assert that the letter is “disciplinary documentation” that falls within the core categories of personnel file information described in Wakefield as personnel information that is useful in making employment decisions regarding an employee, and is exempt under Exemption (c). See Wakefield, 431 Mass. at 798.

Courts have concluded that “personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature.” Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). Within the context of the first clause of Exemption (c), the Supreme Judicial Court has determined that records are “personal” if they pertain to a particular individual. Wakefield, 431 Mass. at 799.

In SPR17/1751, I raised the issue of whether the record could be redacted and non- exempt information contained therein released. In its January 22" response, the School confirms that the record cannot be redacted because it does not contain any non-exempt portions.

Given that the School has demonstrated the document contains solely disciplinary documentation relating to a particular individual, J find that the School has met its burden to withhold the requested document under Exemption (c) of the Public Records Law. See Globe Newspaper Co., 388 Mass. at 438.

Accordingly, I will consider this appeal closed.

Qlueen

Kileeca S. Murray

Supervisor of Records

cc: Colman M. Herman Kevin Bresnahan, Esq.