Collin Dias v. Fall River, City of - Public Schools (SPR 20191825)

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

Rebecca S, Murray Supervisor of Records

September 12, 2019 SPR19/1825

Debra Cabral Administrative Assistant Fall River Public Schools 417 Rock Street

Fall River, MA 02720

Dear Ms. Cabral:

I have received the petition of Collin Dias appealing the response of the Fall River Public Schools (School) to a request for public records, G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Mr. Dias requested “[a]ll records of firings of any employee since 2017.” Unsatisfied with the School’s response, in which they note their intention to withhold the requested records claiming Exemption (c) of the Public Records Law, Mr. Dias petitioned this office and this appeal 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).

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.MLR. 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.

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records,

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

Debra Cabral SPR19/1825 Page 2 September 12, 2019

The School’s September 6" response

In response to Mr. Dias’ request, the School indicates that the records “will not be

provided, as are exempt from disclosure under The Public Records Law...” The School cites Exemption (c).

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). First clause of Exemption (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 (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). Asa 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).

Citing Wakefield, the Town states that “[a]ny ‘personnel information’ contained in the requested records is... exempt from disclosure.”

Debra Cabral SPR19/1825 Page 3 September 12, 2019

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 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.

The School did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories.of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32,06(3)(c)(4). Consequently, the Schoo! must identify any records, categories of records or portions of records it is withholding under Exemption (c).

Further, I find the School did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass, 281, 290 n.18 (1979) (the statutory exemptions are narrowly 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, § 10(a). The School must explain why segregable portions cannot be disclosed.

Conclusion

Accordingly, the School is ordered provide Mr. Dias with a response in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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.

The School may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Sincerely, Rebecca S, an

Supervisor of Records

cc: Debra Cabral