Ilya Feoktistov v. Newton, City of - Public Schools (SPR 20190058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 23, 2019 SPR19/0058 Toby N. Romer Assistant Superintendent for Secondary Education and Special Programs City of Newton - Public Schools Newton North High School 100 Walnut Street Newton, MA 02460 Dear Superintendent Romer: I have received the petition of Ilya Feoktistov appealing the response of the Newton Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on October 14, 2018, Mr. Feoktistov requested" ... any and all communications, over any medium whatsoever, sent and/or received by [ seven identified individuals] between August 15, 2016 and October 15, 2018 containing [fifty-five] keywords or their grammatic derivatives ..." The School provided an initial response which included a fee estimate. Upon receipt of payment, the School provided responses on November 30, 2018 and December 11, 2018, which included portions of the responsive records in redacted form. The School also withheld certain records pursuant to Exemptions (a) and (c) of the Public Records Law and the common law attorney-client privilege. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the School's response, Mr. Feoktsitov petitioned this office and this appeal, SPR19/0058, was opened as a result. While this appeal was pending, the School provided a supplemental response dated January 19, 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, § 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 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

Superintendent Romer SPR19/0058 Page 2 January 23, 2019 establishing the applicability of an exemption). 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. The School's November 30th and December 11°1 responses In its November 30, 2018 response, the School states "[i]n accordance with M.G.L. c. 66, [the School] has withheld from production and/or redacted portions thereof of the following categories of emails pursuant to the applicable exemptions under M.G.L. c. 4, § 7(26)(a) and (c): 1. Documents that are exempt specifically or by necessary implication under applicable state and federal student records laws; 2. Documents that are exempt specifically or by necessary implication by viliue of the attorney-client privilege; 3. Documents that are exempt pursuant to the privacy exemption because they relate to personnel and/or medical files or to a specifically named individual, the disclosure of which may constitute and [sic] unwarranted invasion of privacy; and 4. Documents that are exempt specifically or by necessary implication from disclosure by M.G.L. c. 150E as they constitute protected or concerted union activity." In its December 11, 2018 response, the School states " ... [e ]mails between union members and union representatives that pertain to protected union activity, regarding purely personal or union related business, are not public records in that they are not created by a public employee in the furtherance of government business." The School contends that" ... even if they were found to constitute a public record, they arc exempt from disclosure by the privacy exemption and/or by necessary implication ofM.G.L. c. 150E. M.G.L. c. 150E, s. 2 ... " The School further contends that "[d ]isclosing emails between union members, with union representatives, about personal and/or union business, would constitute interference with the members' lawful concerted activity and have a chilling effect." In addition, the School states "[t]he public records laws and regulations only require a log for documents exempt pursuant to the attorney-client privilege. Attached is a privilege log for this limited amount of emails ...." The School's January 19th supplemental response In its January 19, 2019 response, the School asserts " ... that emails sought between employees/union members and the NTA President or other union representatives/members ... do not constitute public records as contemplated by federal and state laws." The School explains that "[t]he purpose of federal (FOIA) and state public record laws is to provide transparency into official government business undertaken by government officials and employees. The purpose is not to provide access to the public at large to personal, private, and other communications unrelated to government business by public employees." The School asserts that "[w]hile there is

Superintendent Romer SPR19/0058 Page 3 January 23, 2019 a presumption that communications on goverm11cnt email accounts are public, it is not absolute. Here, emails between and among union members and union officers about union and related protected activity, unrelated to official [School] business, are the circumstances where the presumption is rebutted. For example, an email among union members regarding strategy for bargaining or a union meetings and gatherings related thereto, is clearly not official [School] business. Therefore, these emails should not be subject to public records laws as they were not created or maintained in the furtherance of government business." The School contends "that even if these particular emails are found to constitute public records, the content and purpose of these emails indicate that they could be found to constitute concerted protected activity and are therefore exempt from disclosure by necessary implication ofM.G.L. c. 150E, § 10 .... Such protected concerted activity has been found to include, but is not limited to: rights to organize, represent members, file a grievance, communicating to encourage picketing, voting or other related activity, and inquiring about or complaining about terms and conditions of employment." The School explains that "[t]he records request seeks emails that contain the explicit search terms 'Newton Teachers Association', 'NTA', 'Teachers Association', 'bargaining', 'contract' and 'salary' between and among employee union members including the union president. These communications would likely be found to fall within the broadly interpreted category of concerted protected activity contemplated by Chapter 150E .... Utilizing a public records request specifically targeted towards communications related to protected concerted activity undermines the statute that provides broad protections for union activity ...." Further, the School states "[a] subset of the emails that [it] asserts do not constitute public records and/or are exempt by virtue of l 50E, may nonetheless still be withheld under the privacy exemption because the content is related to an employee's personnel and/or medical information." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A govermnental 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). 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

Superintendent Romer SPR19/0058 Page 4 January 23, 2019 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. The statute provides in relevant part: Employees shall have the right of self-organization and the right to form, join or assist an employee organization for the purpose of bargaining collectively through representatives of their own choosing on questions of wages, hours, and other terms and conditions of employment and to engage in lawful concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint or coercion. ... G. L. c. 150E, § 2. Exemption (c) Exemption ( c) permits the withholding of: pers01mel 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). First clause ofE xenzption (c) - personnel & medical 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 and medical 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 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).

Superintendent Romer SPR19/0058 Page 5 January 23, 2019 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 if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Id. 388 at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the School, the School is ordered to provide this office an un-redacted copy of the responsive email records for in camera inspection without delay. See 950 C.M.R. 32.08( 4). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 ( explaining that"[o ]n doubtful questions an in camera inspection may be appropriate"). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n All,ainst Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal

Superintendent Romer SPR19/0058 Page 6 January 23, 2019 community. I understand a Public Records Division staff attorney contacted your office about this appeal. Order Accordingly, the School is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Ilya Feoktistov