Ronald Alexander v. Natick Public Schools (SPR 20180866)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 27, 2018 SPRlS/866 Timothy Luff Assistant Superintendent 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 Town of Natick Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 13, 2018, Mr. Alexander requested time to "inspect all communications by and between the Natick School Committee and [the Superintendent] from 00:00 hours EST on January 1, 2018 to the present, including but not limited to emails, letters, memos, sticky notes, phone calls, etc." Previous appeal; reconsideration; in camera review This request was the subject of a previous appeal, reconsideration, and an in camera inspection. See SPR18/345 Determinations of the Supervisor of Records (March 29, 2018; April 27, 2018; and May 25, 2018). After the in camera review ofresponsive records, I issued a determination on May 25, 2018. In my May 25th determination, I found that the School had not met its burden to justify the withholding of the responsive records in their entirety under the second clause of Exemption ( c ). As such, I ordered the School to review the records, redact where necessary, and provide Mr. Alexander with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the May 25th determination, in responses dated June 11, 2018, and June 13, 2018, the School provided responsive records in redacted form. The School claims the records were redacted pursuant to Exemption (c) of the Public Records Law. Unsatisfied with the School's response, Mr. Alexander petitioned this office and this appeal, SPRl 8/866, was opened as a result. 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

Timothy Luff SPR18/866 Page 2 June 27, 2018 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, § lO(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, § 1 O(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 June Jf" and June Ji" responses In its June 11, 2018 response, the School indicates that it provided the redacted records per the Supervisor's May 25th order. In its June 13, 2018 response, the School explains that it reviewed the emails "and redacted information that, in combination with other information, may be linkable to the specific person(s) with whom the privacy interests are being cited." The School explains that from its vantage point, "and an understanding of the context in which this information will be construed, it is clear that the information redacted is exempt from disclosure under" Exemption ( c ). The School reiterates that "[t]he contents contain intimate details of a highly personal nature regarding reputation of current and/or former employees of [the School]. This information is not available from other sources. After examining the public interest in obtaining the requested information, it is clear to [the School] that this public interest does not outweigh the seriousness of the invasion of privacy that the disclosure would yield." Further, the School indicates that "given the required redactions of the material [it is] not able to produce these documents in an OML format. After redaction this is the only format [the School] could provide the records to" Mr. Alexander. Second clause ofE xemption (c) - privacy Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption ( c) is applicable to this determination. Analysis under the second

Timothy Luff SPR18/866 Page 3 June 27, 2018 clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, here are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Considering the factors in the PETA decision, the School asserts that the redacted portions, which in combination with other information may be linkable to specific persons, contain intimate details of a highly personal nature. The School further asserts that because these records pertain to the "reputation of current and/or former employees of' the School, disclosure would result in personal embarrassment to an individual of normal sensibilities. The School in its June 13th response also confirms that this information is not available from other sources. As such, I find that School has met its burden to show that the specific person(s) involved has a privacy interest in this matter. Furthermore, with respect to the balancing test set-out in the second clause of Exemption (c), I find that the public interest in obtaining the requested information does not outweigh the significant privacy interest. Consequently, based on the in camera review of responsive records, coupled with the production of records in redacted form, I find the School has met its burden to justify the redactions under Exemption (c). See Globe Newspaper Co., 388 Mass. at 438 (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual).

Timothy Luff SPR18/866 Page 4 June 27, 2018 Preferred format for records In his appeal, Mr. Alexander indicates that his preferred format for the records is Microsoft Outlook (OML) format. Mr. Alexander also claims" ... the particular PDF file [the School] provided is not searchable." Although, the School asserts that "given the required redactions of the material [it is] not able to produce these documents in an OML format," please note that under the updated Public Records Law, "[t]he records access officer shall, to the extent feasible, provide the public record in the requestor's preferred format or, in the absence of a preferred format, in a searchable, machine readable format." See G. L. c. 66, § 6A(d). Conclusion Accordingly, whereas I find that the School has met its burden to withhold portions of the responsive records under the second clause of Exemption (c ) , I will consider this administrative appeal closed. Sincerely, Rebecca S. Murr~ Supervisor of Records cc: Ronald Alexander