Josie Albertson-Grove v. East Bridgewater, Town of - Public School District (SPR 20191329)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 15, 2019 SPR19/1329 Elizabeth L. Legault East Bridgewater Public School District J 43 Plymouth Street East Bridgewater, MA 02333 Dear Ms. Legault: I have received the petition of Josie Albertson-Grove of The Enterprise appealing the response of the East Bridgewater Public School District (District) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Albertson-Grove requested "the employment contract between Brian Duffey and East Bridgewater Public Schools" and "any agreement regarding the end of Brian Duffey's employment with East Bridgewater Public Schools." Previous appeal This request was the subject of a previous appeal. See SPRl 9/1083 Determination of the Supervisor of Records (June 12, 2019). In my June li11 determination I ordered the District to review the records, redact where necessary and provide Ms. Albertson-Grove with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. The District responded on June 25, 2019 by providing redacted records. Ms. Albertson Grove appealed and SPR19/1329 was opened as a result. 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, § 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, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Elizabeth L. Legault SPR19/1329 Page 2 July 15, 2019 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 pmtion of the responsive record. Current appeal Its June 25th response the District explains that it produced the responsive employment contract, however, it redacted portions of the responsive "agreement regarding the end of Brian Duffey's employment with East Bridgewater Public Schools." The District cites the personnel clause of Exemption ( c) in support of its redactions. In her appeal petition Ms. Albertson-Grove indicates "[t]he district has redacted four sections of this public record. All four redacted sections seem to contain information that the public has a strong interest in knowing." 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 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 creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 Publ'g Co. v. Register of Probate for Norfolk Cnty., 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 den. 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 Westpmi, 401 Mass. 306,309 (1987).

Elizabeth L. Legault SPR19/1329 Page 3 July 15, 2019 Settlement agreements The District cites Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792 (2000) and Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013) in support of its redactions. In the Globe decision, the court listed the following information that as properly subject to redaction within a settlement agreement under the personnel clause of Exemption (c): (1) promotion of grade; (2) compensation at a different salary grade; (3) adjustment in compensation; (4) waiver of bumping rights and/or recall rights; (5) entitlement to remain on administrative leave; ( 6) requirement to tender a letter of resignation; (7) demand of voluntary resignation; (8) reinstatement; (9) layoff; (10) agreement by an agency to remove a letter from a personnel file; ( 11) agreement by an agency concerning the providing of references and their contents; (12) the requirement that an employee meet with a supervisor to review progress of assigned matters; (13) adjustment of an agency's records to reflect an employee's status; (14) adjustment or continuation of employee benefits, such as unemployment assistance, COBRA, and retirement benefits, and agreement regarding back wages; (15) recitations concerning grievances, including agreement to withdraw a grievance and acknowledgment by an employee of the absence of a pending grievance; (16) a statement of resolution of all claims concerning termination of employment and prior disciplinary actions, (17) agreement to turn in agency property, ( 18) global resolution involving the entering of a nolle prosequi by a prosecutorial official; (19) language affirming an agency's legitimate concern for discipline and an employee's receipt of a memorandum of verbal discipline; and (20) completion by an employer of harassment training. Globe Newspaper Co., Suffolk Sup. No. 11-01184-A at 34-35. In camera inspection In order to facilitate a determination as to the applicability of Exemption (c) to these redactions, the District must provide this office with an un-redacted copy of the agreement at issue for an in camera inspection without delay. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code ofMassaclrnsetts 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 Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations).

Elizabeth L. Legault SPR19/1329 Page 4 July 15, 2019 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. 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 community. Conclusion Accordingly, the District is ordered to provide this office with an un-redacted copy of the agreement at issue for in camem inspection without delay. The District may provide this office with a further explanation of its position regarding the applicability of Exemption ( c) to the redactions. However, please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Josie Albertson-Grove