Rachel Solares v. Department of Elementary and Secondary Education (SPR 20180791)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15,2018 SPR18/791 Josh Varon, Esq. Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148-4906 Dear Attorney Varon: I have received the petition of Rachel Solares appealing the response of the Department of Elementary and Secondary Education (Department) 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 "Shrewsbury Public High School, Shrewsbury, MA investigation report.. .regarding educator misconduct involving [an identified individual] ." Previous appeal This request was the subject of a previous appeal. SPRl81736 Determination of the Supervisor of Records (May 23,2018 ). I closed SPR181736 upon learning the Department provided a response to Ms. Solares on May 23,2018 . Unsatisfied with the Department's May 23rdr esponse, Ms. Solares petitioned this office and this appeal, SPRl81791, 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, 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, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 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 One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 * (6 17) 727-2832- Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Josh Varon, Esq. Page 2 June 15,2018 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, 9 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's May ~ 3a'nd~ Ju ne 12" responses In its May 23rdr esponse, the Department explains that "[~ollowinga n allegation that an educator in the Shrewsbury Public Schools modified a student's responses on the March 2018 MCAS examination, the Shrewsbury Public Schools conducted an investigation of the educator and the incident alleged. The report was provided to the Department's office of student assessment. Based on this report and other materials, Department staff must determine whether the student's examination can be scored or whether the test results must be invalidated. The Department has not finalized its position on this matter." The Department indicates it is withholding the record pursuant to Exemptions (c) and (d) of the Public Records Law. While this appeal was pending, the Department provided another response on June 12,201 8. In its June 12'~ (0 response, the Department indicates it is additionally claiming Exemption applies to the requested record to permit non-disclosure and provides additional information in support of its Exemption (c) claim. Exemption (c) 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 creates a categorical exemption for personnel information that relates to an Id. identifiable individual and is of a 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. l,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., 43 1 Mass. 792,798 (2000). The courts have also discussed specific categories of records that may be redacted under

Josh Varon, Esq. Page 3 June 15,2018 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. George W. Prescott Publishin? 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. 15 1, 158 (19 79). 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. $ee Broyan v. School Comm. of Westport, 401 Mass. 306,309 (1987). In support of its Exemption (c) claim, in its May 23rdr esponse, the Department indicates "[tlhe record [Ms. Solares] describe[s] relates to a specific individual and an investigation into an allegation of employee misconduct." In its June 12'" response, the Department indicates that "[tlhe details of the [record] pertain not only to allegations of MCAS tampering and questions about the continued validity of a student's MCAS scores, but also to questions about possible professional misconduct on the part of the educator alleged to have tampered with a student's MCAS responses." The Department explains that "[tlhe requested record describes the outcome of an investigation into an allegation of misconduct by an educator and includes descriptions of the District's conversation with the educator about the alleged misconduct. As such, it squarely fits within the personnel record exemption, as set forth in Wakefield." Although public employees have a diminished expectation of privacy in matters relating to their official responsibilities, some information concerning a public employee's employment has been found to be sufficiently personal to be exempt from mandatory disclosure. In Wakefield, the Court found that at a minimum, personnel information includes, "employment - . applications, employee work evaluations, disciplinary documen%ationa, nd promotion, demotion, or termination information pertaining to a particular employee." Wakefield, 43 1 Mass. at 798. These, the Court concluded "constitute the core categories of personnel information that are useful in making employment decisions regarding an employee and may be properly withheld Id. from disclosure under Exemption (c)." at 789-99. Specifically, Wakefield deals with a "disciplinary decision and report" created as the result of an investigation conducted into allegations made against a teacher. Id. at 793, 795. The investigation included an interview with Id. the teacher in question and other individuals. at 795. The Court in Wakefield concluded that record constituted a disciplinary report, which fell within the core categories of personnel information under the first clause of Exemption (c). Id. at 798 (citing Globe Newspaper Co, v. Boston Retirement Bd., 3 88 Mass. at 435). Based on the Department's responses, I find the requested investigation report is sufficiently similar to the report in Waltefield to conclude it constitutes a disciplinary report. Consequently, because this report constitutes one of the core categories of personnel information

Josh Varon, Esq. , Page 4 June 15,2018 determined to be exempt as personnel, I find the Department acted properly in withholding the report. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'v of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, 5 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In support of its Exemption (d) claim, in its May 23rdr esponse, the Department indicates that "the Department has not yet finalized its decision as to whether or not the student's test results can be scored or must be invalidated. The facts in the requested report are central to this determination. Until this policy decision is finalized, the records and data on which the Department bases its policy decision are exempt from production under the public records law." Exemption ('jl Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be

Josh Varon, Esq. Page 5 June 15,2018 prejudicial to future law enforcement activities. Bouaas v. Chief of Police of Lexington, 371 Mass 59,62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 28 1,290 n. 18 (1 979). Exemption (f) invites a "case-by- case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. In support of its Exemption (f) claim, the Department explains that "[plroduction of the record in question would have a chilling effect on the Department's ability to ensure the reliability and accuracy of student test results, and to investigate effectively allegations of MCAS tampering and other administration protocol violations. The Department conducts MCAS investigations in collaboration with school districts, and relies on a district's cooperation when resolving questions about the validity of students' test scores. Because MCAS tampering frequently constitutes professional misconduct, the information provided by districts often includes, as here, sensitive personnel record information. Having to produce such records to the public could discourage Districts from being forthcoming with all information need [sic] by the Department to conduct MCAS investigations, and thus impede the Department's ability to investigate allegations of MCAS improprieties." Conclusion Accordingly, where as I find the Department has properly withheld the requested record under the first clause of Exemption (c), I decline to opine on the Department's Exemptions (d) and (f) claims supporting non-disclosure of the requested records. I will now consider this administrative appeal closed. If Ms. Solares is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, 5 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Rachel Solares