Greta Jochem v. Northampton Public Schools (SPR 20191927)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwe.alth Public Records Division Rebecca S. Murray Supervisor of Records October 3, 2019 SPR19/1927 · Dr. John A. Provost, Ed.D. Superintendent Northampton Public Schools 212 Main Street 2nd Floor N01ihampton, MA 01060 Dear Dr. Provost: I have received the petition of Greta Jochem of the Daily Hampshire Gazette appealing the response of the N01ihampton Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Jochem requested "any letters or emails sent to the Northampton school district on September 28, 2018." The School provided a response to Ms. Jochem on September 9, 2019. Ms. Jochem appealed the School's response to this office on September 20, 2019. Tile Public Records Law The Ptiblic 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 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. 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. G. L. c. 66, § lO(b)(iv). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Dr. John A. Provost, Ed.D. SPR19/1927 Page 2 October 3, 2019 Exemption (c) The School redacted portions of responsive records under Exemption ( c) of the Public Records Law. 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. d. 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, relevant to this determination, creates a categorical exemption for personnel and medical 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). 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 embarrassment 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, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass.

Dr. John A. Provost, Ed.D. SPR19/1927 · Page 3 October 3, 2019 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 the School's September 9th response, they cite Exemption (c) for the withholding of the requested letter. They explain that the "communications were part of a record in a workplace investigation that is connected to the District's consideration of employment decisions." Under the first clause of Exemption ( c ), a records custodian may withhold "core categories of personnel information that are 'useful in making employment decisions regarding an employee."' Worcester Telegram & Gazette Corp. v., 58 Mass. App. Ct. at 5. The School fmiher explains in its September 9th response that the records are "part of a workplace investigation file that is maintained for the purpose of making employment decisions" about an identified employee. Ms. Jochem asserts in her appeal that to "address the details in the letter which may be a privacy invasion, in this case I think the public interest in the documents trumps privacy concerns." She further asserts "privacy is not as important as public disclosure." As described above, Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co., 388 Mass. at 432-33. The second clause of Exemption ( c) 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. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 291 (2017). The Supreme Judicial Court (SJC) found that the persmmel clause of Exemption ( c) is not subject to the same analysis as the second clause. Globe Newspaper Co. at 433-34. Conclusion Based on the School's September 9th response, I find the Depaiiment has met its burden to withhold responsive records under the first clause of Exemption (c). See G. L. c. 66, § 1O (a)(ii), (b )(ii)(iii). I will now consider this administrative appeal closed. Sincerely, ~u~ Supervisor of Records cc: Greta Jochem