Ronald Alexander v. Natick, Town of - Public Schools (SPR 20180703)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 30,2018 SPRl81703 Timothy Luff Town of Natick Public Schools Office of the Superintendent 13 East Central Street Natick, MA 01760 Dear Mr. Luff: I have received the petition of Ronald Alexander appealing the response of the Naticlc Public Schools (School) to a request for public records. G. L. c. 66, 5 IOA; see also 950 C.M.R. 32.08(1). Specifically, on March 20,2018, Mr. Alexander requested "to inspect all email messages sent andlor received by any member of the Natick, MA School Committee during the month of January 2018." Additionally, on April 2,201 8, Mr. Alexander requested "to inspect all email messages sent and/or received by any member of the Natick, MA School Committee during the month of March 201 8." Previous appeal These requests were the subject of a previous appeal. SPR181494 Determination of the Supervisor of Records (April 24,2018 ). I closed SPR181494 by ordering the School to provide Mr. Alexander with a response to his requests, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. Subsequently, the School provided a response on April 26,20 18 providing records and indicating some responsive records had been withheld pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c). Unsatisfied with the School's response, Mr. Alexander petitioned this office and this appeal, SPR181703, was opened as a result. Tlze 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, 5 10A(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 17 19, Boston, Massachusetts 02 108 (61 7) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Timothy Luff Page 2 May 30,20 18 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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 4 19 Mass. 507, 5 1 1 (1 995) (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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (a) With respect to its Exemption (a) claim, the School indicates that '"m]ultiple emails are being withheld under the Family Educational Rights and Privacy Act, or FERPA, privacy provision for students who are eligible under the Individuals with Disabilities Education Act, IDEA." Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151 , 54 (1 979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Timothy Luff Page 3 May 30,2018 Exemption (c) With respect to its Exemption (c) claim, the School indicates that "[alfter a through [sic] review of these emails, the contents contain intimate details of a highly personal nature regarding reputation of current and/or former employees of Natick Public Schools. This information is not available from other sources. After examining the public interest in obtaining the requested information, it is clear to this Records Custodian that this public interest does not outweigh the seriousness of the invasion of privacy that disclosure would yield." 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 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 Id. that relates to an identifiable individual and is of a "personal nature." 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). Waltefield Teachers Ass'n v. School Comm 43 1 Mass. 792,798 (2000). The courts have also discussed specific categories of 9 records that may be redacted under the first clause. Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 1 1-011 84-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. &g George W. Prescott Publishing Co. v. Register of Probate for Norfollc County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 3 88 Mass. at 436 n. 15. Further, the public has an interest in lcnowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 158 (1 979). 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 Cornrn. of Westport, 401 Mass. 306, 309 (1987).

Timothy Luff Page 4 May 30,2018 Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with speciJicity the exemption which applies." G. L. c. 66, 5 lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. Despite the School's response, it remains unclear how Exemption (a) and Exemption (c) permit withholding of the records. The School's response did not contain the specificity required in a denial of access to public records. Instead, the School's response merely cites Exemptions (a) and (c) without any further explanation as to the exemptions' applicability to the requested records. The School is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the School has not satisfied its burden in responding to this records request. The School is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. 1 understand a Public Records Division staff attorney contacted your office about this matter. Conclusion Given that the School has not met its burden to explain how an Exemption applies to the requested records, the requested records may not be withheld. Accordingly, the School is ordered to review the records, redact where necessary, and provide Mr. Alexander 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, Rebecca S. Murray Supervisor of Records cc: Ronald Alexander