Chrissy Ryan v. Amherst-Pelham Regional School Districts (SPR 20192320)

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

Rebecca S. Murray Supervisor of Records

November 21, 2019 SPR19/2320

Debbie Westmoreland

Director of Communications and Operations Amherst-Pelham Regional Public Schools 170 Chestnut Street

Amherst, MA 01002

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, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Ryan requested “personnel file[s}” for identified District employees.

Previous Appeal

This request was the subject of a previous appeal. See SPR 19/2151 Determination of the Supervisor of Records (November 1, 2019). In my November 1*' determination I ordered the District to provide Ms. Ryan with a supplemental response to her request for records, The District provided this response on November 15, 2019, producing responsive records, and withholding others pursuant to Exemption (c) of the Public Records Law. Unsatisfied with the response she received from the District, Ms. Ryan petitioned this office and this appeal 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.MLR. 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

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

Ms. Debbie Westmoreland SPR19/2320 Page 2 November 21, 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.

Current Appeal

In its November 13" response, the District provided personnel materials for six specified District employees. In her appeal petition, Ms. Ryan objects to the District’s withholding of employee evaluations for the six employees, and the non-production of a resume for one specific employee.

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 of Exemption (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, 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 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). Asa result, certain information that is considered personal in the ordinary sense of the word may be

Ms. Debbie Westmoreland SPR19/2320 Page 3 _ November 21, 2019

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),

Evaluations

In its November 13" response, the District indicates that it “asserts exemption with respect to ‘evaluations’ within the personnel file under MGL c. 4, 7 (26), exemption (c) ‘personnel and medical files and information,’ as per Wakefield Teachers Ass’n v. School Comm. of Wakefield.” Based on its responses, I find that the District has met its burden to show how the responsive records constitute “work evaluations,” one of the “core categories of personnel information” that may be withheld under the personnel clause of Exemption (c). See Wakefield, 431 Mass. at 798.

Resume- Assistant Superintendent

In her appeal petition, Ms. Ryan “contest[s] that a Resume would not be on file for the Assistant Superintendent/HR Director/Equity Director Doreen Cunningham.” In its November 13" response, the District states: “[w]ith regard to ‘resumes supplied on hire,’ there is no record responsive to that request in the personnel file of Doreen Cunningham.”

No Duty to Create a Record

Under the Public Records Law, a records custodian has no obligation to create a record in response to a public records request. However, while the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request, it is unclear whether the requested record was ever possessed by the District. See G. L. c. 66, § 10(a)(ii). The District must clarify this matter.

Conclusion

Accordingly, the District is ordered to provide a response to Ms. Ryan clarifying whether the requested records existed, and if so, demonstrate that they were permissibly destroyed. This | response must be made in accordance with the Public Records Law, its Access Regulation and this order within ten (10) business days. 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

ce: Chrissy Ryan