Joe Difazio v. Cohasset, Town of - Public Schools (SPR 20191513)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supe111isor of Records August 12, 2019 SPR19/1513 Christopher Senior Town Manager Town of Cohasset 41 Highland A venue Cohasset, MA 02025 Dear Mr. Senior: I have received the petition of Joseph DiFazio, of The Patriot Ledger, appealing the response of the Town of Cohasset (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 5, 2019, Mr. DiFazio requested the following records: 1. Any records, including electronic communication, receipts, invoices, communication to pause, etc. relating to a Ryan Strategies investigation undertaken by [the Town's] public school system related to [an identified former school employee] and/or the school's response to allegations against him; and 2. The final repo1i of any such Ryan Strategies investigation. On July 28, 2019, after receiving fmiher records from the Town, Mr. DiFazio petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, he states, "[a]fter receiving additional items in my request, I'd like to further appeal the redactions within the Ryan Report and communications regarding the report and [the identified former employee]. I'd also like to appeal the communications not furnished." As a result, this appeal was opened. Ryan Report --Previous appeals; reconsideration; in camera inspection; time petition The requested Ryan Strategies investigation report was the subject of previous appeals; a reconsideration; in camera inspections and a subsequent time petition. See SPRl 9/0507; SPR19/1402 Determinations of the Supervisor (March 19, 2019; April 26, 2019; May 21, 2019; June 4, 2019 and July 30, 2019). In my May 21, 2019 determination upon an in camera inspection of the investigation repmi, I found the Town's claims in its responses dated April 2, 2019; April 16, 2019 and May 2, 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

Christopher Senior SPR19/1513 Page 2 August 12, 2019 2019 to withhold information within the content of the investigation report under Exemptions (c), (d) and (f) were justified. With regard to the Town's Exernption (d) claim and based on in camera inspection, I found that the Town had established how the report was prepared in anticipation of litigation or for trial, particularly in light of the fact that the report was prompted by a possible claim against the Town; therefore, the Town had met its burden of withholding certain of the information under Exemption (d) as attorney work product as delineated in DeRosa v. City of New Bedford, 471 Mass. 446 (2015). Upon in camera inspection, I also found that the Town had met its burden of specificity in claiming Exemption (f) to withhold information whose disclosure would risk directly or indirectly identifying the voluntary witnesses involved. In light of this finding, I found it was unnecessary to opine on the Town's Exemption (c) claim. Accordingly, my May 21st determination ordered the Town to review the records, redact where necessary and provide Mr. DiFazio with the responsive records. On July 3rd, the Town provided Mr. DiFazio with the redacted report under Exemptions ( d) and (f), in response to my May 21st determination following the in camera inspection. Unsatisfied with the response, Mr. DiFazio petitioned this office, and another appeal was opened. See SPR19/1402 Determination of the Supervisor (July 30, 2019). In my July 30th determination, based on the Town's provision of the investigative report in redacted format for in camera inspection, I found the Town had met its burden to withhold portions of the report that constitute "opinion" work product as delineated in DaRosa, as it operates through Exemption ( d). See DaRosa v. City of New Bedford, 471 Mass. 446 (2015). I also found the Town had met its burden to justify withholding information whose disclosure would risk directly or indirectly identifying the voluntary witnesses involved in the investigation under Exemption (f). Based on the in camera inspection of both the un-redacted and redacted versions of the report, I found in my July 30th determination, that the Town had met its burden of specificity to withhold the redacted p01iions of the rep01i under Exemptions ( d) and (f). See SPR19/1402 Determination of the Supervisor (July 30, 2019). Accordingly, I decline to reverse my July 30th determination with respect to the responsive report. Communications and other records - previous appeal and in camera inspection The Town provided an initial response on March 11, 2019, including a fee estimate. After receipt of payment, the Town provided another response dated May 21, 2019, which included portions of the responsive records in redacted form. The Town also withheld certain records from disclosure. The Town claims that the records were redacted and/or withheld under Exemptions (a), (c) and (f) of the Public Records Law, as well as the attorney-client privilege. Unsatisfied with the Town's response, Mr. DiFazio petitioned this office and appeal, SPRl 9/1020 was opened. While this appeal was pending the Town provided supplemental responses on May 29, 2019 and May 31, 2019.

Christopher Senior SPR19/1513 Page 3 August 12, 2019 In its May 21, 2019 response, the Town indicated that it was providing a set of emails and responsive records. The Town provided an index of the records with the exemptions being cl:;iimed to withhold and redact pmiions of the records. In its May 29, 2019 and May 30, 2019 responses, the Town clarified the exemptions claimed and provided an updated index of the email records, and records that have either been provided or withheld. See SPRl 9/1020 Determinations of the Supervisor (May 31, 2019 and July 12, 2019). In my May 31st determination, I ordered the Town to provide this office with un redacted copies of the responsive records for in camera inspection, and ordered the Town to provide Mr. DiFazio with a supplemental response regarding the Town's attorney-client privilege claim to withhold ce1iain of the communications. Based on the in camera inspection of the records, I found in my July li 11 determination that while certain records are required by statute to be exempt from disclosure, it remained unclear why certain documents cannot be redacted to prevent the disclosure of identifying information. See Wakefield, 431 Mass. at 800 (citing Globe Newspaper Co., 388 Mass. at 438) (holding that "personnel files or information are absolutely exempt ... where the files or information are of a personal nature and relate to a particular individual."). In addition, with regard to the redacted records, I found that the Town must provide additional information explaining how the redactions are justified under Exemption ( c ). With respect to email records that were withheld in their entirety, it was unclear how portions, such as the email header information and administrative discussions within the bodies of some of the emails, could not be disclosed. Further, with respect to Exemption (f), to the extent that the records contain voluntary witness statements and cannot be redacted in a way that protects the witnesses from direct or indirect identification, those portions of the responsive records may properly be withheld. See SPRl 9/1020 Determination of the Supervisor (July 12, 2019). Current appeal - Town's July 26, 2019 response 11 In response to my July li determination, the Town provided Mr. DiFazio with a thirteen page index specifying the date, time, sender, recipient and the exemption(s) claimed for redacted communications that the Town provided. In addition, the index included descriptions and exemptions claimed to withhold eighteen responsive records. The Town redacted and withheld certain.of the records under Exemptions (a), (c) and (f) of the Public Records Law. As a result, Mr. DiFazio appealed the Town's exemption claims for the redacted communications and the withheld records, and the current appeal, SPRl 9/1513 was opened. 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

Christopher Senior SPR19/1513 Page 4 August 12, 2019 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, § 1O (b )(iv) (written response must "identify any records, categories of records 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 ... "); 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). 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 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). 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. The Town has claimed the Family Educational Rights and Privacy Act (FERP A) and the state student record law and regulations, as well as G. L. c. 119, § 51B to withhold requested information. FERP A allows the Town or School District to withhold any personally identifiable information pe1iaining to a student and/or the student's education records. Under 34 C.F.R. 99.3 personally identifiable information includes, but is not limited to, "student's name; name of the student's parents or other family member; address of the student or student's family; a personal

Christopher Senior SPR19/1513 Page 5 August 12, 2019 identifier, such as the student's social security number, student number, or biometric record; other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable ce1iainty; or information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates." See 34 C.F.R. § 99.3(g). The Town has withheld in its entirety, a record pertaining to a particular student's attendance under the Massachusetts student record statute and regulation restricting access to student records. The statutes and regulation provide in relevant paii: The board of education shall adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the commonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or any other records concerning such pupil which are kept or are required to be kept. G. L. c. 71, § 34D. Each school committee shall, at the request of a parent or guardian of a student, allow such parent or guardian to inspect academic, scholastic, or any other records concerning such student that are kept or are required to be kept, regardless of the age of such student. Each school committee shall, at the request of a student eighteen years of age or older, allow such student complete access to all school records relative to him or her. G. L. C. 71 § 34E. Access to student records is restricted from: Access of Third Parties. Except for the provisions of 603 CMR 23.07(4)(a) through 23.07(4)(h), no third paiiy shall have access to information in or from a student record without the specific, informed written consent of the eligible student or the parent. When granting consent, the eligible student or parent shall have the right to designate which paiis of the student record shall be released to the third paiiy. A copy of such consent shall be retained by the eligible student or parent and a duplicate placed in the temporary record. Except for information described in 603 CMR 23.07(4)(a), personally identifiable information from a student record shall only be released to a third paiiy on the condition that he/she will not permit any other third party to have access to such information without the written consent of the eligible student or parent. ... 603 C.M.R. 23.07(4).

Christopher Senior SPR19/1513 Page 6 August 12, 2019 The Town has als.o withheld ce1iain of the information in the Department of Children and Family reports pe1iaining to allegations of injured children/students under G. L. c. 119, § 5 lE. Section 51E. The department shall maintain a file of the written reports prepared under this section and sections 51A to 51D, inclusive. These written reports shall be confidential. Upon request and with the approval of the commissioner, copies of written reports of initial investigations may be provided to: (i) the child's parent, guardian, or counsel, (ii) the reporting person or agency, (iii) the appropriate review board, (iv) a child welfare agency of another state for the purpose of assisting that agency in determining whether to approve a prospective foster or adoptive parent, or (v) a social worker assigned to the case. No such report shall be made available to any persons other than those specified in this section without the written and informed consent of the child's parent or guardian, the written approval of the commissioner, or an order of a court of competent jurisdiction. As a result of the in camera inspection in July, and the Town's May and July responses, provision ofredacted records and its indexes to support withholding ce1iain of the information in the records under Exemption (a) and the applicable statutes, I find that the Town has met its burden of specificity in claiming Exemption (a) to redact certain of the records and withhold certain other records. Exemption (c) Exemption (c ) permits the withholding of: personnel and medical files or information; ~lso 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 xemption (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 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

Christopher Senior SPR19/1513 Page 7 August 12, 2019 (2000). The courts have also 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 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 Westp01i, 401 Mass. 306,309 (1987). Courts have concluded that "personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature." Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). Within the context of the first clause of Exemption ( c ), the Supreme Judicial Comi has determined that records are "personal" if they pe1iain to a paiiicular individual. Wakefield, 431 Mass. at 799. I find that the records are personal as they pertain to a particular identified individual. In both its indexes provided on May 30th and July 26th, the Town indicated that the communication records were redacted and other records were withheld under the first clause of Exemption ( c ). The Town asse1is that the records fall within the personnel record exemption due to investigation of allegations of misconduct pertaining to an identified employee. Based on the in camera inspection conducted by this office in July 2019, and based on the indexes describing the records redacted and withheld undel' the first clause of Exemption (c), I find that the Town has demonstrated that the responsive records constitute core categories of records useful in making an employment decision, such as disciplinary, demotion or termination information pertaining to tµe identified employee. See Worcester, 58 Mass. App. Ct. at 5. Therefore, the Town has met its burden of specificity in claiming that ce1iain records and ce1iain redactions to records may be withheld as personnel information under the first clause of Exemption ( c) . Second clause ofE xemption (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. 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

Christopher Senior SPR19/1513 Page 8 August 12, 2019 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). 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, 4 77 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. In its responses and indexes, the Town has indicated that ce1iain information that may personally identify the student victim(s) of the alleged abuse has been redacted from the records provided to Mr. DiFazio. In the case of the Department of Children and Family reports of alleged abuse, the Town has withheld certain of the information in its entirety. However, it is still unclear what other information may have been redacted from the records that fall under the privacy clause of Exemption ( c) . It is unclear whether any information pertaining to the identified employee has been redacted under the privacy clause of Exemption ( c ). Therefore, I find that the Town has not met its burden in claiming the privacy clause of Exemption ( c) without providing what type of information and how it pe1iains to the subject of the investigation. The Town must clarify this issue. Exemption (I) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative effmis in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could ale1i suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371

Christopher Senior SPR19/1513 Page 9 August 12, 2019 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Based on the in camera inspection conducted in July 2019 and in reviewing the Town's indexes, I find that the Town has redacted certain of the records under Exemption (f). In its index provided on May 30th, the Town notes, "[w]here exemption (f) is noted-actual and potential witness names, identities, or information from which identity can be discerned, are at issue, and in order to preserve integrity of investigations, this exemption is claimed. Even with redactions, identities are discernible due to highly public nature of allegations." In its response that accompanied the index, the Town states, " ... [t]he information being withheld consists of personally identifiable information concerning witnesses who were interviewed in connection with the school district's investigation and Fred Ryan's investigation." The Town's July 261 h response was accompanied by additional responsive records and an index to account for redactions. The Town's response states, "[t]he [index] below includes all non-attorney/client email communications previously withheld by the District or produced by the District in redacted form in response to [Mr. DiFazio's] request, with the addition of more detailed exemption explanations, as required by the Supervisor's determination." The Town notes that the emails that have been provided in redacted format pertain to investigatory information that if released would compromise investigation prior to resolution. The Town redacted certain information under Exemption (f). The Town withheld in their entirety the grand jury subpoena and any accompanying records from the grand jury proceeding. The Supreme Judicial Court has held that no member of the public has any right to access matters occurring before the grand jury in an ongoing investigation. WBZ-TV 4 v. District Attorney for the Suffolk Dist., 408 Mass. 595, 599-602, 562 N.E.2d 817 (1990). The requirement and need for secrecy in a grand jury is a fundamental tenet of the Massachusetts Judicial system. See Massachusetts Rules of Criminal Procedure 5(d) .. Based on the Town's indexes pertaining to the redacted communications, I find that the Town has met its burden in supporting its redaction under Exemption (f), and its withholding of grand jury records in their entirety under Exemption (f). Conclusion Accordingly, I find the Town has met its burden of specificity in withholding records in their entirety and portions of records under Exemption (a ), the personnel clause of Exemption (c ) and Exemption (f). I consider this p01iion of the administrative appeal closed.

Christopher Senior SPR19/1513 Page 10 August 12, 2019 However, I find that the Town has not provided sufficient information to support its claims of personal privacy under the second clause of Exemption (c). The Town is ordered to provide a response 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: Joseph DiFazio Rosann DiPietro, Esq., Long & DiPietro, LLP