Heather Zelevinsky v. Sharon, Town of - Public Schools (SPR 20192238)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 18, 2019 SPR19/2238 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, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Zelevinsky requested a certain annotated copy of [l pmiicular article. Previous Appeal This request was the subject of a previous appeal. See SPRl 9/1807 Determination of the Supervisor of Records (September 19, 2019). In my September 19th determination I ordered the School to confirm "whether these records were shared with others" and to provide specific reasons for withholding the record under Exemption ( e ). Following the September 19111 determination, the School provided a supplemental response on September 26, 2019. Unsatisfied with the School's response, Ms. Zelevinsky petitioned this office and this appeal, SPR19/2238, 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, § 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 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

Jonathan Hitter SPR19/2238 Page 2 November 18, 2019 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. 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. 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. In its September 26111 response the School asserts "[t]he substance of what the requestor seeks amounts to the personal reflections of Ms. Kaplan ... [t]hose reflections were not shared with a quorum of the Committee, were not entered into the minutes of the School Committee meeting, were not the subject of any School Committee discussion or deliberation, were not the subject of any reports prepared by Ms. Kaplan, were not prepared for inclusion in the files of the governmental unit and were not offered as pati of the official record of the School Committee meeting. They were not distributed to or shared with any School District employees ... Ms .. Kaplan showed her copy of the aiiicle to one fellow School Committee member, not for the purpose of sharing her annotations, but for the purpose of directing the member's attention to a legal citation that Ms. Kaplan thought the author had included in the article. Ms. Kaplan's comments at the meeting pertained to what she thought was in the content of the article itself, not her annotations."

Jonathan Hitter SPR19/2238 Page 3 November 18, 2019 Further, the School indicates "[t]he document at issue, as indicated in the attached statement, was part of the personal working file of an individual Committee member and was never intended to be, nor was it made, a part of any government file." The School included a copy of a signed statement of Marcy Kaplan reiterating the record was personal to her and was shared with Ms. Zelevinsky in directing her attention to a .legal citation Ms. Kaplan "thought was contained in the article." In light of the School's September 26th response indicating that these responsive records are personal notes which were not kept in a government file, I find the School has met its burden to withhold the requested records under Exemption (e). G. L. c. 4, § 7 (26)(e). Conclusion Based on the School's response, I find the School has met its burden in responding to Ms. Zelevinsky's appeal request. Accordingly, I will consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Heather Zelevinsky