Kelly A. Tobin v. Hatfield Public Schools - Office of the Superintendent (SPR 20191779)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pervisor of Records September 16, 2019 SPR19/1779 Riley Malinowski Records Access Officer Hatfield Public Schools 34 School Street Hatfield, MA 01038 Dear Ms. Malinowski: I have received the petition of Kelly A. Tobin appealing the response of the Hatfield Public Schools (School) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Tobin requested various categories ofrecords "[r]elative to a survey of the Smith Academy athletes perfonned on or about November/December 2018." The School responded on June 19, 2019 by providing certain records but denying access to others under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(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, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical fonn 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, § IO(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. Appeal In its June 19111 response the School provided certain emails, minutes, and summaries. The School indicates "[d]ue to the provisions ofM.G.L. c. 4, s. 7(26t11)(c) I have not released the 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

Riley Malinowski SPR19/1779 Page 2 September 16, 2019 surveys of the athletes as such release would have resulted in an unwarranted invasion of personal privacy. More specifically, said surveys were used in the evaluation of the coaches." The School further asserts "[t]he redactions on pages 3, 17 and 18 were due to the provisions of M.G.L. c. 4, s. 7(26th) (c) as the information related to specifically identified students and employees and would have resulted in an unwaiTanted invasion of personal privacy." In her appeal petition Ms. Tobin asserts, in part, "I disagree with their decision to not provide complete copies of the survey results and they cite M.G.L. c.4, s.7 (26th) (c) as their reason." She further notes "[a]ssuming the District did review the results with the coaches, I am not asking the District to reveal how they documented and/or addressed results with the coaches nor am I asking to review the coaches personnel files as that would be protected but the data gathered during the administration of the survey is nothing more than data and it should be public record." Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or infonnation; 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 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 infonnation 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). 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). Although the School indicates "said surveys were used in the evaluation of the coaches," I find the School has not established how the surveys at issue, in their entirety, constitute one of the "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may'be withheld from disclosure under the personnel clause of

Riley Malinowski SPR19/1779 Page 3 September 16, 2019 Exemption (c). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are naiTowly 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). Second clause 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 embaITassment 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, p'aternity, 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 inforn1ation 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. I find the School has not met its burden to withhold the records at issue under the second clause of Exemption (c). Although the School contends that disclosing ce1iain information "would have resulted in an unwainnted invasion of personal privacy," the School has not established how the privacy interest in the responsive records outweighs the public interest in disclosure under the analysis outlined above in PETA. Conclusion Accordingly, the School is ordered to provide Ms. Tobin a written response made in accordance with the Public Records Law, its Regulations and this order 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.

Riley Malinowski SPR19/1779 Page4 September 16, 2019 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kelly A. Tobin