Joe Difazio v. Norwell Public Schools (SPR 20192098)

The Commonwealth of Mas~achusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 28, 2019 SPR19/2098 Warren G. MacCallum, M.B.A., M.C.P.P.O Director of Finance, Operations & Technology Norwell Public Schools 322 Main Street Norwell, MA 02061 Dear Mr. Maccallum: I have received the petition of Joseph Difazio of The Patriot Ledger appealing the response of the Norwell Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 8, 2019, Mr. Difazio requested "[a]ny email communication and attachments or physical communications to former teacher ... between January and July 2019 regarding: an investigation into his behavior with a student+ disciplinary action, punishment, warning, reprimand or other admonishment regarding his behavior with a student including what's deemed appropriate or not+ any mention regarding texting with students." Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/1900 Determination of the Supervisor of Records (October 1, 2019). In my October 1st determination, I found that the School had not met its burden to withhold two documents under Exemption ( c) . Accordingly, I ordered the School to provide Mr. Difazio with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the School provided a response on October 10, 2019. Unsatisfied with the School's response, Mr. Difazio petitioned this office and this appeal, SPR19/2098, was opened as a result. While this appeal was pending, the School provided a supplemental response dated October 17, 2019. Tlte 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 records" is broadly defined to include all documentary materials or data, regardless of physical 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

Warren G. MacCuUum, M.B.A., M.C.P.P.O SPR19/2098 Page 2 October 28, 2019 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The School's October 101 response " In its October 10, 2019 response, the School indicates that the two documents previously withheld are "[l] ... a letter from Superintendent of Schools ... to an employee, memorializing a personnel meeting with the employee and referencing allegations against the employee leading to the initiation of discipline ('first document') [and] [2] ... a letter from Superintendent ... to an employee, referencing the first document and accepting employee's resignation ('second document')." The School asserts that both records are exempt from disclosure under 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 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,

Warren G. MacCullum, M.B.A., M.C.P.P.O SPR19/2098 Page 3 October 28, 2019 or termination information pe1iaining to a paiiicular 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). 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 Westport, 401 Mass. 306, 309 (1987). · Citing Worcester and Wakefield, the School asserts that "[b ]oth documents are indisputably personally identifiable personnel records maintained in an employee's personnel file [and] ... relate to 'core categories of personnel information that are 'useful in making employment decisions regarding an employee[.]"' The School states that" ... both documents fall within the categories of disciplinary documentation and termination information .... " Second clause of Exemption (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 sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available froin 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).

Warren G. MacCullum, M.B.A., M.C.P.P.O SPR19/2098 Page 4 October 28, 2019 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. Under the second clause of Exemption (c), the School states that" ... the first document relates to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. That document implicates privacy interests rising to the level of intimate details of a highly personal nature, more specifically, relative to personal relationships and reputation." 11" The School's October supplemental response In its October 17, 2019 response, the School rebuts the claims made in Mr. Difazio's petition, and asserts that "[t]he withheld records do not involve the direct expenditure of public funds[,] [neither do they] ... relate to a current public employee's carrying out of job duties or official responsibilities. The withheld records are a former employee's personnel records relating to the initiation of discipline and the separation of the former employee from school district employment." The School provides information distinguishing the records at issue in this appeal from those considered in George W. Prescott Publishing Co., Attorney Gen., and Brogan, as indicated in Mr. Difazio's petition. The School further contends that the records," ... categorized as a former employee's disciplinary documentation and termination information, are within 'core categories of personnel information' 'useful in making employment decisions,' inclusive of 'disciplinary documentation' and 'demotion or termination information pertaining to a pmiicular employee .... " In camem inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the School to withhold responsive records, the School must provide this office with un redacted copies of the responsive documents for an in camera review without delay. 950 C.M.R. 32.08( 4). After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4);see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.