Marc Larocque v. Brockton, City of - Public Schools (SPR 20180420)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 12, 2018 SPR18/420 Lim Bou City of Brockton - Public Schools 43 Crescent Street Brockton, MA 02301-4376 Dear Mr. Bou: I have received the petition of Marc Larocque of The Brockton Enterprise appealing the response of the City of Brockton Public Schools (School) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on March 20, 2018, Mr. Larocque requested the following records: " [t]he certificates that must be filed annually stating an employee's name and place of residence, as mandated by City ordinance, 'Residency requirement of employment and promotions' ... for the years 2017 and 2016. Any notice of a failure of an employee to file a certificate indicating residency within the city of Brockton, as mandated by city ordinance 'Residency requirement of employment and promotions' ... for the years 2017 and 2016. Any records of exemptions or extensions to the residency ordinance granted by the city to Brockton Public Schools employees, or any other such correspondence related to the ordinance." The School provided a response on March 28, 2018, claiming it did not possess records responsive to Request 2. The School denied access to records responsive to Requests 1 and 3, pursuant to Exemptions (c) and (o) of the Public Records Law. G. L. c. 4, § 7(26)(c), (o). Unsatisfied with the School's response, Mr. Larocque petitioned this office and this appeal, SPRl 8/420, 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, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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

Lim Bou SPR18/420 Page 2 April 12, 2018 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); 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, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The School's March 28th response In its March 28, 2018 response, the School clarifies that "while [it] does maintain certain documents regarding the residency of School employees, these documents are maintained pursuant to collective bargaining obligations, and not pursuant to the referenced city ordinance." As such, it is treating the request for documents relating to employee residency generally, "and not specifically 'as mandated by city ordinance."' The School indicates that for Request 1, the School possesses documents submitted by employees for the 2017 year only. It also indicates that it possesses two pieces of correspondence addressed to employees related to the question of residency with regards to Request 3. However, the School indicates that the records are exempt from disclosure pursuant to the first clause of Exemption ( c) and Exemption ( o) of the Public Records Law. Exemption (c) The School claimed it withheld responsive records pursuant to the first clause of Exemption ( c) of the Public Records Law. 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). First clause ofE xemption (c) - personnel 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

Lim Bou SPR18/420 Page 3 April 12, 2018 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 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). Under its Exemption (c) claim, the School, citing the Wakefield decision, indicates that "[b]ecause these documents bear on the employee's eligibility for employment and continued employment pursuant to the applicable collective bargaining agreement, they are exempt as personnel records." With respect to whether records can be redacted, the School indicates that "the records are not subject to redaction as they do not contain any non-exempt, segregable portions." Citing Wakefield, the School indicates that records falling within the core categories of records as personnel are exempt in their entirety. Wakefield, 431 Mass. at 799. Exemption (o) The School indicated that it withheld responsive records pursuant to Exemption (o) of the Public Records Law. Exemption (o ) permits the withholding of: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody

Lim Bou SPR18/420 Page4 April 12, 2018 of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. C. 4, §7 (26)(o ). Under its Exemption (o) claim, the School indicates that" ... the home address of employees - is further exempt from disclosure under Exemption ( o) ... ( exempting 'the home address ... of an employee of ... a political subdivision' of the Commonwealth)." Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 ..." ); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Based on the School's initial response, I find that the School has not met its burden to withhold responsive records under Exemption ( c) of the Public Records Law. Although the School claims the responsiv~ records are useful in making employment decisions because they "bear on the employee's eligibility for employment and continued employment pursuant to the applicable collective bargaining agreement," I find that the School has not demonstrated how the certificates or the correspondence addressed to its employees regarding the question of residency, each constitute one of the "core categories of personnel information," such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under Exemption (c ). See Wakefield, 431 Mass. at 798. Conversely, whereas Exemption (o) permits the withholding of the home address of employees "of a political subdivision," I find that the School may permissibly redact the home address of employees from the responsive records. No duty to create records Under the Public Records Law, the School is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 1 O(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Whereas the School explains it does not possess any documents

Lim Bou SPR18/420 Page 5 April 12, 2018 responsive to "[a]ny notice of a failure of an employee to file a certificate indicating residency within the city of Brockton ... ," I find that Mr. Larocque's appeal related to that request is resolved. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the School is ordered to provide Mr. Larocque with responsive records, 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. The School may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~a~ Supervisor of Records cc: Marc Larocque