Kelly A. Tobin v. Hatfield Public Schools - Office of the Superintendent (SPR 20192239)

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

Rebecca S. Murray Supervisor of Records

November 19, 2019 SPR19/2239

Riley Malinowski .

Records Access Officer

Hatfield Public Schools

34 School Street

Hatfield, MA 01038

Dear Ms. Malinowski:

I have received the petition of Kelly A. Tobin appealing the response of the Hatfield Public Schools (School/District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Tobin requested various categories of records “[rJelative to a survey of the Smith Academy athletes performed on or about November/December 2018.”

Previous appeal

This request was the subject of a previous appeal. See SPR19/1779 Determination of the Supervisor of Records (September 16, 2019). In my September 16'" determination I ordered the School to provide Ms, Tobin a response made in accordance with the Public Records Law, its Regulations and the order. The School provided a response on September 25, 2019. Ms. Tobin appealed and SPR19/2239 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.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.

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

Riley Malinowski SPR19/2239 Page 2 November 19, 2019

Current appeal

The School initially responded on June 19, 2019 by providing certain records but denying access to others under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). The School provided certain emails, minutes, and summaries but you also indicated “[d]ue to the provisions of M.G.L. c. 4, s. 7(26")(c) I have not released the surveys of the athletes as such release would have resulted in an unwarranted invasion of personal privacy. More specifically, said surveys were used in the evaluation of the coaches.”

In my September 16" determination I found that although the School indicated “said surveys were used in the evaluation of the coaches,” the School had not established how the surveys at issue, in their entirety, constitute one of the “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” that may be withheld from disclosure under the personnel clause of Exemption (c). I also found the School had not met its burden to withhold the records at issue under the second clause of Exemption (c). In its September 25" response the School provides additional information regarding its Exemption (c) claim.

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

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).

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In its September 25" response the School asserts “. . . the survey was conducted to provide administration with athlete feedback which would be used specifically for the evaluation of the coaches. The surveys were not used for any other purpose. The survey information was in fact useful for the evaluation of the coaches, but we would not be able to conduct a survey of athletes again if the information is going to be made public due to the privacy issues related to both the athletes and the coaches.” The School further notes “[t]he evaluation system in a public school system is considered private and part of the personnel record with the exception of the Superintendent’s evaluation. Release of the surveys, notes of the Athletic Director, or other materials specifically used to evaluate the coach’s performance would violate the privacy rights of the employees involved as the surveys are part and parcel of the evaluation system.”

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. 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.

With respect to the second clause of Exemption (c), the School contends “. . . we would need to redact information in the surveys to protect the identity of the respondents (i.e., student athletes). Being a small school, it would be possible to discern the identity of the student athletes based upon the detail provided in their responses. Therefore, even assuming arguendo that

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release would not violate the privacy rights of the coaches involved, the release would be substantially redacted for the students’ protection.”

Redaction of personally identifiable information

In her appeal petition Ms. Tobin asserts “[i]n view of public interest (the District has not established that privacy outweighs public interest), I believe the survey results, which is only data, in its entirety is public record and should be released.” She further notes that “[t]he only caveats being, if a respondent provided their name, it should be redacted and if the respondent provided their grade, it should be redacted to protect the anonymity of the respondent.” Ms. Tobin also indicates “[a]dditionally, I am not looking for any information relative to how the District documented any information relative to the results within the coaches’ personnel files, as I believe would be protected. I am only requesting the survey responses in their entirety... .”

With respect to the redacting personally identifiable information as it relates to the personnel clause, Wakefield provides the following:

Only information that does not permit the identification of any individual is not exempt from disclosure. See id. at 438, 446 N.E.2d 1051 (“personnel files or information are absolutely exempt ... where the files or information are of a personal nature and relate to a particular individual”). While the statute does not - by its terms limit the exemption for “personnel and medical files or information” to those “where the files or information are of a personal nature and relate to a particular individual,” id., we added that judicial gloss to explain that the legislation does not exempt from disclosure a personnel record wholly unrelated to any individual's privacy interest, such as a generic job description or generic qualification requirement for a particular level of position that might constitute part of a personnel record.

Wakefield, 431 Mass. at 800.

Although the records at issue may potentially constitute one of the “core categories of personnel information that are ‘useful in making employment decisions regarding an employee,’” it is unclear why the School cannot provided these records in a de-identified manner as described in Wakefield above. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature); 32 Op. Atty Gen. 157, 164 (May 18, 1977) (an entity “. . . should consider deleting the personal identifying information and making an expurgated copy of the information available to the public.”), I also find it is unclear how the records at issue in this appeal may be withheld in their entirety under the second clause of Exemption (c), Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

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In camera inspection

In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the School to withhold the records in their entirety, the School must provide this office with unredacted copies of the records at issue for an in camera inspection without delay. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.LR. 32.08(4).

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. ¢. 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. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c).

This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances, Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community.

Conclusion

Accordingly, the School is ordered to provide this office with unredacted copies of the records at issue without delay. The School may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record,

Sincerely,

Rebecca S, a Manat

Supervisor of Records ce: Kelly A. Tobin