Heather Zelevinsky v. Sharon, Town of - Public Schools (SPR 20191807)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

September 19, 2019 SPR19/1807

Jonathan Hitter

Chair

Sharon School Committee

Sharon Public Schools

75 Mountain Street

Sharon, MA 02067

Dear Mr. Hitter:

I have received the petition of Heather Zelevinsky appealing the response of the Sharon Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Ms. Zelevinsky requested “Marcy Kaplan’s annotated copy of the article entitled ‘What About My Rights’ by Karla Schultz, which Ms. Kaplan disclosed to me during an open school committee meeting on June 19, 2019.” The School responded indicating they do.not have a copy of the responsive records, then subsequently claimed Exemption (e). Unsatisfied with the School’s response, Ms. Zelevinsky petitioned this office and SPR19/1807 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, § 10A(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).

The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. Lc, 66, § 10(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency").

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, § 10(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

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

Jonathan Hitter ~ SPR19/1807 Page 2 September 19, 2019

must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record.

Current appeal

In its August 2, 2019, response the School indicated “[t]he record consists of materials prepared by Ms. Kaplan that are personal to her and not maintained as part of the files of the School District or School Committee. Therefore, the document is covered by exemption (c).,.[p]lease further note that I do not have the document or any copy thereof in my possession and, to my knowledge, neither the School Committee nor the Superintendent has the document or any copy thereof.” .

Exemption (e) Exemption (e) permits the withholding of:

notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit .

G. L.c. 4, § 7 (26)(e).

The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption.

The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e).

The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. The School must establish whether these records were shared with others.

' Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to

establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality

Jonathan Hitter SPR19/1807 Page 3 September 19, 2019

intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

In light of Ms. Zelevinsky ‘s appeal and the School’s response, the School’s response did not contain the specificity required in a denial of access to public records. Instead the School’s response cites Exemption (e) without sufficient explanation as to the exemption’s applicability to the requested records. The School is not permitted to issue a blanket denial without providing further information with respect to the requested records. As a result, the School has not met its burden to withhold responsive records under the exemptions described above; in particular, it has not provided specific reasons for the applicability of Exemption (e). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Conclusion

Accordingly, the School is ordered to provide Ms. Zelevinsky 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,

Ke beceo. Mamas

Rebecca S. Murray Supervisor of Records. cc: Heather Zelevinsky