Jorge Teixeira v. Hudson, Town of - Public Schools (SPR 20181152)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 16, 2018 SPRlS/1152 Marco Rodrigues, Ed.D. Superintendent Town of Hudson-Public Schools 155 Apsley Street Hudson, MA 01749 Dear Superintendent Rodrigues: I have received the petition of Jorge Teixeira appealing the response of the Town of Hudson Public Schools (School) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Teixeira requested a copy of "the incident report that took place on July 3rd while [identified individual] was being transported home from school at RCS by Van Pool Transportation special van and any and all communications that took place between Van Pool, Hudson Public Schools and Hudson Police Department." Mr. Teixeira also requested "the training information on the substitute driver and [identified individual]'s substitute bus monitor." The School responded on July 27, 2018 by denying access to responsive records under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). 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, § 1 O(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. 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

Marco Rodrigues, Ed.D. SPR18/1152 Page 2 August 16, 2018 Current appeal Student Records 11 In its July 2i response the School asserts "[y] our requests seek records, to the extent that they exist, which are considered student records as they are records, such as communication and reports, which relate to an incident of a particular student, who is not your own child." You further note "[a]ny and all records that identify a student are exempt from disclosure under exemption (a) to the Public Records Law as they are records 'specifically or by necessary implication exempted from disclosure by statute.' The specific statute in question is Mass. Gen. L. Ch. 71, § 34D, which addresses student records. That statute also references student record regulations, 603 CMR 23. 00 et. seq., which specifically prohibits the disclosure of student record information to a third party without the specific, informed written consent of the eligible student or the parent. Given that the records requested, to the extent that they exist, contain information about a specific student, these records cannot be disclosed." In his appeal petition Mr. Teixeira indicates he is seeking "assistance getting this information" and refers to a document titled the "Family Educational Rights and Privacy Act (FERPA ) and the Disclosure of Student Information Related to Emergencies and Disasters." Based on the School's response, it is unclear which responsive records it possesses. See G. L. c. 66, § lO(b)(iv) (a written response shall "identify any records, categories ofrecords or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based. ...) . Further, I find the School has not met its burden to show how responsive records may be withheld in their entirety, particularly in light of the document referenced by Mr. Teixeira in his appeal petition. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). 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, disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). 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 that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making

Marco Rodrigues, Ed.D. SPR18/1152 Page 3 August 16, 2018 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). 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. See George W. Prescott Publishing 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. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record ifrelating to an individual's official responsibilities. See Globe Newspaper Co., 388 Mass. at 435 ("Not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection"); Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). A personnel file or information "is not limited to nor does it extend to, all 'files or information' that are located physically in an individual employee's personnel file." Wakefield, 431 Mass. at 797 n. 13; see also Globe Newspaper Co., 388 Mass. at 435 (not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection). The School argues "the request for training information on the substitute driver and monitor is exempt from disclosure under exemption ( c) of the public records law as they are '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.'" You also indicate "[t]raining information is the kind of information which could be useful in making employment decisions regarding the employee, and provides an additional or alternative basis for withholding the requested document. See Wakefield Teachers' Association v. School Committee of Wakefield, 431 Mass. 792 (2000)." It is unclear which records the School possesses that are responsive to Mr. Teixeira's request for "training information." See G. L. c. 66, § 1O (b )(iv). Further, I find the School has not met its burden to show how the responsive training information constitutes one of the "core categories of personnel information," such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under the personnel clause of Exemption (c). See Worcester, 58 Mass. App. Ct. at 5; Wakefield, 431 Mass. at 798.

Marco Rodrigues, Ed.D. SPR18/1152 Page4 August 16, 2018 The School and Mr. Teixeira are encouraged to communicate further to enable the Town to provide the requested records sought. Conclusion Given that the School did not meet its burden to explain how an exemption applies to the records, the School is ordered to review the records, redact where necessary, and provide Mr. Teixeira with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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: Jorge Teixeira