Lonna Steinberg v. Brookline, Town of - Town Clerk (SPR 20192514)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2020 SPR19/2514 Suzanne McCormick - de Boer Administration and Finance Public Schools of Brookline 333 Washington Street Brookline, MA 02445 Dear Ms. McCormick-de Boer: I have received the petition of Lonna Steinberg appealing the response of the Brookline 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, on November 22, 2019 and in-person, Ms. Steinberg requested three categories of records: 1. All records supporting the statement of Director of Human Resources Lisa Richardson in her letter to me of November 18, 2019 that "During the course of the investigation into retaliation, it has come to my attention that you may have engaged in behavior that could be construed as unprofessional and abusive toward Ms. Jean-Michel." 2. All records supporting the statements of Director of Human Resources Lisa Richardson in her letter to my husband, Mike Offner, of November 4, 2019, that, "Taking into consideration all evidence gathered during the investigation, I was not able to substantiate your allegations. I found no evidence of any inappropriate conversations or other interactions between your daughter and Principal Jean-Michel. In fact, the evidence suggests the opposite in that the conversation was completely appropriate." 3. All records created that reflect or were created as part of interviews with Lauren Vulcano, Jessica Turbidy, Sarah Hahesy, Genteen Jean-Michel, and "five additional witnesses" as referenced in the letter from Director of Human Resources Lisa Richardson to my husband, Mike Offner, of November 4, 2019. The School responded providing responsive records and denied remaining records stating they were "withheld from disclosure under exemptions (a) and (c) of the public records law because they pertain to ( 1) a personnel matter and constitute personnel record information or to 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

Suzanne McCormick - de Boer SPR19/2514 Page 2 January 6, 2020 identified or identifiable minor students at the school and constitute student record information." Unsatisfied with the School's response, Ms. Cage 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 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) (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 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). The School's Response In its response, the School indicated "[t]he remaining records are withheld from disclosure under exemptions (a) and (c) of the public records law because they pertain to (1) a personnel matter and constitute personnel record information or to identified or identifiable minor students at the school and constitute student record information." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 1, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that

Suzanne McCormick - de Boer SPR19/2514 Page 3 January 6, 2020 such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. 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). Second clause ofE xemption (c) - privacy Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption ( c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to lmow 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

Suzanne McCormick - de Boer SPR19/2514 Page 4 January 6, 2020 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. Burden of specificity; 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); Flatley, 419 Mass. at 511. The School did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). The School must produce any non-exempt, segregable pmiions of public records. G. L. c. 66, § 10( a). Furthermore, the School did not identify the records, categories of records or portions of records in its possession, custody or control that it is withholding under Exemption (a) and Exemption ( c) . To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or pmiions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the School withheld responsive records without identifying what records it possesses that may be responsive to Ms. Steinberg's request. It is also unclear which statutory exemption permits the withholding of records pursuant to Exemption (a). The School must identify any records it intends to withhold and provide the specific reasons for such withholding. Conclusion Accordingly, the School is ordered to provide Ms. Steinberg 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: Lonna Steinberg