Gerard F. Mackin, Jr. v. Weymouth, Town of - Public Schools (SPR 20181679)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 28, 2018 SPRlS/1679 Dr. Jennifer Curtis-Whipple Superintendent Weymouth Public Schools 111 Middle St. Weymouth, MA 02189 Dear Dr. Curtis-Whipple: I have received the petition of Gerard F. Mackin, Jr. appealing the response of the Weymouth Public Schools (School) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mackin, Jr. sent an email on October 12, 2018 requesting "email records of the athletic director of the Town of Weymouth. The request is for records since Jan. 2, 2016." The School provided a response to Mr. Mackin, Jr. October 26, 2018. Mr. Mackin, Jr. appealed the School's response to this office on November 13, 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. G. L. c. 66, § lO(b)(iv). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: One Ashburton Place, Room 171'9, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Dr. Curtis-Whipple SPR18/1679 Page 2 November 28, 2018 specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a). 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. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). Exemption (c) The Department claims records may be withheld under the second clause of Exemption ( c) of the Public Records Law. 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. 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). 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. 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, 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 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).

Dr. Curtis-Whipple SPR18/1679 Page 3 November 28, 2018 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 in a law-abiding and efficient manner. Id. at 292. Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for black and white copies for both single and double-sided copies of a public record. G. L. c. 66, § 10(d )(i). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § lO(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). Appeal Mr. Mackin, Jr. appealed the School's October 26th response based on the School not providing a sufficient fee estimate and no "factual basis is stated for the claims of exemption to production based on the cited statutes." The duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). It is unclear what records the School is withholding or if the records are not in the School's possession. See G. L. c. 66, § lO(b)(ii), (b )(iii). The School must identify the record(s) withheld under each exemption and explain why the exemption applies. See G. L. c. 66, § lO(b)(iv) (identify any records, categories ofrecords or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding); See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). The School must provide a more detailed fee estimate in accordance with the Public Records Law and its Regulations. See G. L. c. 66, § lO(d). The School's fee estimate must provide clarity on how many pages will be produced, the reasons for redaction of documents, if any, and any other associated fees. See G. L. c. 66, § lO(d)(i) (a maximum fee of five cents ($.05) per page may be assessed for black and white copies for both single and double-sided

Dr. Curtis-Whipple SPR18/1679 Page 4 , November 28, 2018 copies of a public record). While municipalities may include an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, the fee shall not be more than $25 per hour. See G. L. c. 66, § lO(d)(iii), (iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d )(iv). See G. L. C. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The School has not clearly explained which documents or categories of documents required the assessing of fees for segregation or redaction under the Public Records Law. G. L. c. 66, § 10(d )(iii). The School's fee estimate must provide clarity on what documents are being produced, the reasons for redaction of documents, and the breakdown of fees for search, segregation and redaction for each category of records. This office encourages both parties to communicate further. The School may ask Mr. Mackin, Jr. for a more refined search in order to provide the responsive records in a more efficient manner. See G. L. c. 66, § lO(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Order Accordingly, the School is ordered to review the requests made by Mr. Mackin, Jr. and provide a written response and fee estimate to Mr. Mackin, Jr., made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. This administrative appeal is now closed. 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: Gerard F. Mackin, Jr.