George P. King, Jr. v. Nashoba Regional School District (SPR 20181091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supewisor of Records August 6,201 8 SPR1811091 Patricia Marone Nashoba Regional School District 50 Mechanic Street Bolton, MA 01740 Dear Ms. Marone: I have received the petition of George P. King, Jr. appealing the response of the Nashoba Regional School District (District) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 22,20 18 , Mr. King requested the following records: 1. A copy of any termination/separation/settlement agreements made with any employee of the Nashoba Regional School District that have been signed since December 14,2016. 2. A copy of the detailed invoice and work product from the engagement of Barbara Durant to review Nashoba finances in or about the time period of June 2016. 3. An itemized list of legal expenditures in FY 20 18 to date, broken down by matter for any matter that exceeds $2,000. 4. A digital copy of the complete results of the staff climate survey conducted by the school committee in the Spring of 20 17. 5. All emails, text messages or other written or electronic communication to or from Brooke Clenchy, to or from Charlotte Murray (formerly Charlotte Derkiscz) between September 20 16 and September 20 17. Previous appeal and petition The requested records were the subject of a previous appeal and subsequent petition to the Supervisor of Records See SPR181843 Determination of the Supervisor of Records (June 22, 20 18) (SPR181843 determination) and SPR181887 Determination of the Supewisor of Records (June 22,201 8). In both determinations, I ordered the District to provide Mr. King with a response to the request in a manner consistent with the order, the Public Records Law, and its Regulations. 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

Patricia Marone Page 2 August 6,20 18 Following the June 22ndd eterminations, the District provided a response on July 9,2018 which included certain records in redacted form. The District claims the records were redacted pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c). Contending that "the response was not complete and satisfactory," Mr. King petitioned this office, and this appeal, SPR1811091, was opened as a result. This appeal pertains to requests 2,3, and 4. 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, 8 1O A(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, 8 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tlze District's July 9t" response Request 2 In response to request 2, the District claims it ". . . is not in possession of any work product created by Barbara Durant." However, Mr. King claims "[tlhe District purchased a financial review from an independent contractor in the Spring of 2016 and there should be a written work product at the time the review was procured." Based on Mr. King's claim, it is unclear why the District does not possess the record Mr. King claims should be in its custody. The District must explain whether it was once in possession of the requested work product at the time the financial review was purchased or could obtain a copy of the work product from the independent contractor. The District must clarify this matter. G. L. c. 66, 5 10(a)(ii) (the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request).

Patricia Marone Page 3 August 6,2018 Request 3 The District indicated that it provided records responsive to this request. However, Mr. King claims "[tlhe information on the spreadsheet is not fully responsive as to the dates covered." He further claims that because "[he] ha[s] been unable to get a definitive response when [he] asked for clarification," he now reiterates his request for copies of the actual monthly bill summaries. In light of Mr. King's appeal, the District must confirm whether it possesses and can produce "the actual monthly bill summaries." See G. L. c. 66, $ 10(a)(ii). Request 4 The District had claimed Exemption (b) to withhold responsive records in its June 6, 201 8 response. See SPR181843 determination. Responding to request 4, the District claims without waiving its position that the records are exempt from disclosure pursuant to Exemption (b), it further asserts that the records are exempt under Exemptions (a) and (c) of the Public Records Law. Exemption (a) 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. 15 1, 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.

Patricia Marone Page 4 August 6,20 18 Under its Exemption (a) claim, the District indicates that "Exemption (a) 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 anonymous' or 'shall not be subject to the disclosure provision of the Public Records Law.'" As such, the District asserts "[hlere the participants were told that their responses would be kept anonymous and therefore should be afforded the same protection provided by Exemption A." Based on the District's response, it is unclear what statute the District is claiming to withhold responsive records. The District it reminded that for Exemption (a) to apply, the requested record must be "specifically or by necessary implication exempted from disclosure by statute." G. L. c. 4, $7 (26)(a) (emphasis added). 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 First clause of Exemption (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 first clause creates a categorical exemption for personnel information that relates to an Id. 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., 43 1 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 1 1-01 184-A (June 14,201 3). 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 Publ'g 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

Patricia Marone Page 5 August 6,20 18 law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151 , 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. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). The District claims, "[tlhe information sought in [request 41 appears to concern the '2017 NRSD Teachers and Staff Climate Survey.' . . . The survey contained two types of questions: multiple choice (with and without comments) and open-ended questions (e.g. 'Is there anything else you'd like us to know about yourself?'; Is there anything else you'd like us to know about the District?; 'Is there anything else you'd like us to know about your work and environment?'; 'Is there anything else you'd like us to know about your superintendent?"' to mention, but a few. The District notes that when staff and teachers were invited to take the survey, they were informed that "'[t]he purpose of this survey is to learn how you feel about the [District]. It is not an evaluative tool for any personnel. All responses are anonymous.' Although the participants were not required to, and did not, submit their names in response to the survey, they did provide information from which their identities could be ascertained (i.e. location of employment, years employed by the [District] etc." The District posits that "[mlaintaining the anonymity of the participants encourages future participants to respond to future surveys with candor and the release of that information would likely have a chilling effect on the respondent's future frankness. The anonymity also protects participants from embarrassment and protects the subjects of any comments or answers from embarrassment." The District further indicates that these records "are akin to other valuations that are considered personnel under the first clause of Exemption (c). . . ." As such, where "the comments and written section include, among other things, comments regarding the superintendent and principal at the time of the survey[,]" the records may be withheld. In the District's response, it indicated that when staff and teachers were invited to take the survey, they had been informed that "[tlhe purpose of this survey is to learn how you feel about the [District]. It is not an evaluative tool for any personnel. . . ." As such, although the survey includes "comments regarding the superintendent and principal[,]" I find that the District has not demonstrated how the requested records fall within the core categories of personnel file information described in Wakefield, and how the records were useful in making employment decisions regarding an employee, and are exempt under Exemption (c). Wakefield, 43 1 Mass. at 798. Given that the District has not demonstrated that the records, in their entirety, are personnel file information that may be withheld under the first clause of Exemption (c), I find that the District has not met its burden of specificity in claiming Exemption (c) of the Public Records Law to withhold the comment and written sections of the survey in their entirety. Second clause of Exemption (c) -privacy Analysis under the second 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.

Patricia Marone Page 6 August 6,2018 Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Cornrn'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, there 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 Id. disputes and reputation. 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, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. Under the second clause of Exemption (c), the District indicates that "[tlhe teachers and staff that completed the survey did so under the belief that the responses would be anonymous and therefore reasonably could have expected their responses to be kept private." The District asserts that "[allthough the anonymity of the participant is preserved in [the sections that contain charts], disclosure of the comment and written sections threaten the anonymity because the participant might be directly and indirectly identified based on a response. Therefore, the written comments and answers constitute 'intimate details' because the participants believed that their personal feedback would be kept anonymous or private. Accordingly, the participants' privacy interests outweigh the public interest in disclosure of those sections of the survey results that contain comments and written answers." Although the District claims "the written comments and answers constitute 'intimate details' because the participants believed that their personal feedback would be kept anonymous or private[,]" it is unclear how the requested records contain intimate details of a highly personal nature. Also, the District did not demonstrate how disclosure of the records would result in personal embarrassment to an individual of normal sensibilities or whether the records are a. available from other sources. Further, although the District claims "disclosure of the comment and written sections threaten the anonymity because the participant might be directly and indirectly identified based on a response," it is unclear how identifying details cannot be redacted from the records to

Patricia Marone Page 7 August 6,201 8 preserve the anonymity of participants. It is additionally uncertain why segregable portions of the responsive records cannot be produced. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, $ 10(a). The District must explain why segregable portions cannot be provided. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Given that the District did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the District is ordered to review the records, redact where necessary, and provide Mr. Icing 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: George P. King, Jr.