Chrissy Ryan v. Amherst-Pelham Regional School Districts (SPR 20192151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 1, 2019 SPR19/2151 Debbie Westmoreland Director of Communication and Operations Amherst-Pelham Regional School District 170 Chestnut Street Amherst, MA O1 002 Dear Ms. Westmoreland: I have received the petition of Chrissy Ryan appealing the response of the Amherst Pelham Regional School District (District) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Ryan requested the "[p]ersonnel file for: [f]ormer Superintendent Maria Geryk; [f]ormer Finance Manager; current Superintendent Mike Morris; current Assistnat Superintendent Doreen Cunningham; current Finance Manager Sean Mangano; and Faye Brady (from hire to present); including evaluations, goals, resumes supplied upon hire." In a September 25, 2019 response, the District informed Ms. Ryan, "[t]he District asserts exemption with respect to the records responsive to your request under [G. L. c. 4, § 7(26)(c), [E]xemption (c) 'personnel and medical files and information."' As a result of the denial, Ms. Ryan petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defihed 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 a order to withhold requested record. 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 ... "); 950 C;M.R. 32.06(3); see 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

Debbie Westmoreland SPRl 9/2151 Page 2 November 1, 2019 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). 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. Exemption (c) Exemption (c) applies to: 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). 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 Publ'g Co. v. Register of Probate for Norfolk Cnty., 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Fmiher, 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 o·f a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westpo1i, 401 Mass. 306,309 (1987). A personnel file or information "is not limited to nor does it extend to, all 'files or information' that is located physically in an individual employee's personnel file."' Wakefield, 431 Mass. at 797 n. 13; see also Globe Newspaper Co., 388 Mass. at 435 (not every bit of

Debbie Westmoreland SPR19/2151 Page 3 November 1, 2019 information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection). The District has not met its burden of specificity in claiming that the responsive records, in their entirety, are personnel records that may be withheld under the first clause of Exemption (c) of the Public Records Law. Second clause of (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 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. 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, 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. It is unclear from the District's response whether the District is also claiming the privacy clause of Exemption ( c) to withhold records or portions ofrecords. I find that the District has not met its burden of specificity in claiming a privacy interest to withhold records or certain portions of the records. To withhold records under the second clause of Exemption (c), a records custodian must establish whether disclosure of the records, even in a redacted format, would result in personal embarrassment to an individual of normal sensibilities; whether the responsive records contain intimate details of a highly personal nature; and whether the same information is available from other sources. See PETA, 477 Mass. at 292.

Debbie Westmoreland SPR19/2151 Page 4 November 1, 2019 Burden of specificity in claiming exemptions; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419.Mass. 852, 857 (1995); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995). Fmiher, the District must produce any non-exempt, segregable pmiions of the public records. G. L. c. 66, § lO(a). The District is advised, 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, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). w. Conclusion Accordingly, the District is ordered to provide Ms. Ryan with a response to the request, 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, ~~ Rebecca S. Murray Supervisor of Records cc: Chrissy Ryan (via email)