Rachel Solares v. Shrewsbury, Town of - Public Schools (SPR 20180721)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 31,2018 SPRl81721 Patrick C. Collins Assistant Superintendent - Finance and Operations Town of Shrewsbury Public Schools 10 0 Maple Avenue Shrewsbury, MA 0 15 45 Dear Assistant Superintendent Collins: I have received the petition of Rachel Solares appealing the response of the Town of Shrewsbury Public Schools (School) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Solares requested a copy of the April 2018 School investigation report submitted by Principal Todd Bazydio to the Department of Early and Secondary Education (DESE) regarding MCAS educator misconduct involving an identified employee during the March 20 18 ELA MCAS testing. In its May 8,2018 response, the School denied the request in its entirety pursuant to Exemption (c) of the Public Records Law, as a confidential personnel record. As a result, Ms. Solares petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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, 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 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) (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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). One Ashburton Place, Room 171 9, Boston, Massachusetts 0210 8 (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Assistant Superintendent Patrick C. Collins SPRl81721 Page 2 May 31,2018 st" The School's May response The School asserts in its May gth response that the request is denied because the report is a confidential personnel record that is exempt under 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 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). Wakefield Teachers Ass'n v. School Comm 431 Mass. 792,798 (2000). The courts have also discussed specific categories of 3 records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 1 1-01 184-A (June 14,2013 ). 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. Waltefield, 43 1 Mass. at 799. In its May gthr esponse, the School indicated that it withheld the investigation report regarding an identified employee because the report is confidential personnel information which is exempt under Exemption (c). However, the School has not met its burden of demonstrating how the report falls within the core categories of personnel file information described in Waltefield, as a core category of personnel information that is useful in making an employment decision regarding an employee pursuant to the first clause of Exemption (c). See Wakefield, 43 1 Mass. at 798. Therefore, the School has not met its burden of specificity in withholding the report under the first clause of Exemption (c).

Assistant Superintendent Patrick C. Collins SPRl8172 1 Page 3 May 31,2018 In a May 24th telephone discussion with the School's Legal Counsel, Alisia St. Florian of Murphy, Hesse, Toomey and Lehane, LLP, a Public Records Division attorney raised the issue of the School not demonstrating how the report, in its entirety, is a record that is "one of the core categories of personnel information that was useful in making an employment decision" regarding the identified employee. Furthermore, the School has not demonstrated that the report cannot be redacted, allowing for the non-exempt information contained therein to be released. It is my understanding Attorney St. Florian informed this office that she would provide the necessary support for the School's intent to withhold the report under the first clause of Exemption (c); however, to date no supplemental response has been received by this office. Burden of specificity in responding and claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, 6 10(b)(iv); see also Globe Newspaper Co. v. Police Cornm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 5 1 1. The School did not meet its burden of demonstrating how Exemption (c) applies to withhold the responsive report, in their entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The School must produce any non-exempt, segregable portions of the public record. G. L. c. 66, 5 10(a). Conclusion Given the School did not provide the specificity required in withholding the report under Exemption (c), the School cannot withhold the record. See G. L. c. 66, fj 1O (b)(iv). Accordingly, the School is ordered to review the report, redact the report where necessary and provide the responsive report in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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 request a reconsideration of this determination within 10 business days of the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rachel Solares Alisia St. Florian, Esq.