Armand Wray v. Longmeadow Public Schools (SPR 20180363)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 2, 2018 SPR18/363 Michelle Grodsky Town of Longmeadow - Public Schools Longmeadow School Committee 53 5 Bliss Road Longmeadow, MA O1 106 Dear Ms. Grodsky: I have received the petition of Armand Wray appealing the response of the Town of Longmeadow School Committee (Committee) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wray requested a copy of executive session minutes for meetings dated January 24, 2018; January 31, 2018; February 7, 2018 and February 9, 2018. On March 16, 2018, you informed Mr. Wray that the Committee voted to release the i\ executive session minutes from the meetings of January 24th, January 31st and February and after review for any redaction necessary under the Public Records Law, the minutes would be provided. On March 19th, the Committee provided Mr. Wray with the executive session minutes in redacted format pursuant to the first clause of Exemption ( c) of the Public Records Law, as personnel information, and under the common law attorney-client privilege. Mr. Wray petitioned the Supervisor of Records and this appeal was opened. In a March 23rd email to Caroline Thibeault, Esq. of Deutsch Williams Brooks DeRensis & Holland, P.C., the Committee's Legal Counsel, Mr. Wray indicated that as a former member and Chair of the Committee, he understood the involvement of the attorney and that the redactions under the common law attorney-client privilege make sense; therefore, he is not appealing the redaction under the privilege. However, Mr. Wray has appealed the redaction of the discussions regarding the Committee's persom1el information claim under Exemption (c), and the Committee's Open Meeting Law (OML) claim for redactions of portions of the executive session minutes regarding a separate discussion. 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

Michelle Grodsky SPR18/363 Page 2 April 2, 2018 No records In a March 16th email, you explained to Mr. Wray that the Committee meeting scheduled for February 9th was cancelled, therefore, the Committee has no meeting minutes for that date. Under the Public Records Law, the RAO shall identify any records that are not within its possession, custody or control of the public record sought. See G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.06(3)(c)(2). There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Open Meeting Law The Committee withheld a portion of content in the January 24th and January 31st executive session minutes pursuant to the Open Meeting Law (OML) exception due to on-going negotiations regarding the teachers' contract. G. L. c. 30A, § 21(a)(2). The redacted sections of the executive session meeting minutes are marked, "[P]urpose 2: Strategy for Negotiations Unit A." Mr. Wray should be advised that the interpretation of the OML falls within the authority of the Office of the Attorney General - Division of Open Government (AGO) and not with the Supervisor. Therefore, I must decline to opine on the OML exception and the Committee's decision to withhold those portions of the executive session meeting minutes pertaining to on going negotiations with the teachers' contract. 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, § 1O (b )(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. 5 07, 511 ( 1995) (c ustodian has the burden of establishing the applicability of an exemption).

Michelle Grodsky SPR18/363 Page 3 April 2, 2018 The Committee's March 22nd and March 26, 2018 responses In the March 22nd and March 26th responses, the Committee indicated that a portion of the January 24th, January 31st and February J1h executive session minutes were redacted pursuant to the first clause of Exemption (c ) of the Public Records Law. 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). 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 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 ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). The Committee's March 22nd response indicates that the Committee discussed a complaint brought against the Superintendent of Schools and strategy in preparation for contract negotiations on the Superintendent's contract. In the March 22nd response, Attorney Thibeault

Michelle Grodsky SPRI8/363 Page 4 April 2, 2018 stated, "[t]he Committee discussion of the complaint, including the substance of the complaint and any personnel action that may have been discussed in connection with the complaint, unquestionably constitutes 'personnel information' because it is relevant to future employment decisions with respect to that employee." Therefore, Attorney Thibeault indicated that even though the OML purpose for the executive sessions has ended, the Committee's redaction is still appropriate based on established law protecting personnel information. In a telephone conversation, a Public Records Division attorney explained to Attorney Thibeault that with its March 19th and March 2211d responses, the Committee did not meet its burden of specificity in claiming that the redacted information concerning the Superintendent may be withheld as personnel information under Exemption (c). As a result, on March 26t\ Attorney Thibeault provided a further response. The March 26th response explained that the deliberations concerned an identifiable employee's suitability for the job in light of certain complaints that were raised, the continued and/or future employment with the School District, and any appropriate action to take under the employee's contract. The Committee cites the Wakefield court decision to support its statement that the complaints discussed by the Committee were of a personal nature regarding an identified employee and "were useful in making an employment decision." See Wakefield Teacher's Ass'n v. School Comm. of Wakefield, 431 Mass. 792 (2000). The Committee's deliberations involved an assessment of the complaints, a decision that no disciplinary action would be taken and the decision to allow the employee's continued employment under the contract. Therefore, the Committee indicates that redaction of the information in the executive session minutes concerning the complaints regarding the Superintendent and the deliberations of any disciplinary action and deliberation of the contract was proper under the personnel clause of Exemption (c). In camera review At this time, in order to facilitate a final determination as to the applicability of the Exemption ( c) claim made by the Committee to the redacted portions of the discussion of the employee complaint(s) and contract deliberations, I request that the Committee provide this office an un-redacted copy of the responsive executive session meeting minutes of January 23rd, January 21st and February ih for in camera inspection without delay. 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 issue an opinion on the public or exempt nature of the withheld portions of the records. The authority to require the submission of records for an in caniera 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

Michelle Grodsky SPR18/363 Page 5 April 2, 2018 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). Furthermore, 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. The Committee may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records, or redacted portions of the responsive records. However, 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. Order Accordingly, the Committee is ordered to provide this office with an un-redacted copy of the executive session meeting minutes without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Armand Wray Caroline Thibeault, Esq.