Lonna Steinberg v. Brookline, Town of - Office of the Town Counsel (SPR 20200191)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111/sor ofR ecords February 14, 2020 SPR20/0l9l Joslin Murphy, Esq. Town Counsel Town of Brookline 333 Washington Street, 61 h Floor Brookline, MA 02445 Dear Attorney Murphy: I have received the petition of Lonna Steinberg appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 1O A; see 950 C.M.R. 32.08(1). Specifically, on November 22, 2019, 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, ofNovember 4, 2019. 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

Joslin Murphy, Esq. SPR20/0l.91 Page 2 February 14, 2020 Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/2514 Determination of the Supervisor of Records (January 6, 2020). In my January 6th determination, I found the Town had not met its burden to withhold responsive records under Exemptions (a) and (c) of the Public Records Law. Accordingly, I ordered the Town to provide Ms. Steinberg with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Town responded on January 31, 2020, providing additional information regarding its exemption claims. Unsatisfied with the Town's response, Ms. Steinberg petitioned this office and this appeal, SPR20/0191, was opened as a result. Purpose of request; identity ofrequestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Steinberg's purpose in making the request has no bearing on the public status of any existing responsive records. 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, § 1O A( 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, § 1O (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. 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. Tlte Town's January 3JS' response In its January 31, 2020 response, the Town claims that it possesses the following responsive records: (1) a memo; (2) an HR Director's notes; (3) a video recording; and (4) email

Joslin Murphy, Esq. SPR20/0191 Page 3 February 14, 2020 records. The Town claims that these records are exempt from disclosure. Memo The Town states that it possesses "[a] memo from Runkle School Principal Genteen Jean Michel to HR Director Lisa Richardson [(HR Director)] dated October 7, 2019. This memo was provided to [the HR Director] in connection with her investigation of [an identified individual's] complaint against the Runkle School administration, and it pertains to the October 3, 2019 incident involving [Ms. Steinberg's] daughter and another student." The Town asserts that the memo is exempt from disclosure under Exemption (a)," ... because it contains education record information that is protected from disclosure under the Family Educational Rights and Privacy Act (20 U.S.C. s. 1232g)." The Town further asserts that the memo is exempt under Exemption ( c) , " ... because it constitutes personnel record information pertaining to the district's investigation of the complaint against the School Principal that if disclosed would compromise the district's ability to function effectively as an employer. Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792 (2000)." Notes The Town also states that it possesses the HR Director's" ... notes of the witness interviews she conducted in connection with [an identified individual's] retaliation complaint." The Town indicates that it was informed by the HR Director that the" ... notes are personal to her; that they are not maintained in the files of the Public. Schools of Brookline; and that they have not been shared with anyone other than counsel. As such, these notes are withheld from disclosure under Exemption (e ) of the public records law." Video recording The Town indicates that it possesses "[a]n October 4, 2019 video recording of the exterior of the Runkle School." The Town notes that this video was made available to Ms. Steinberg's husband in regards to his public records request. The Town also indicates that it attached the response that was previously provided to that request. Emails The Town also confirms it possesses three email records responsive to Ms. Steinberg's request. The Town states that it presumes Ms. Steinberg has copies of these emails, because she was either copied on the emails or it was her own correspondence to the HR Director. The Town fmiher claims these email records are exempt from disclosure pursuant to Exemptions (a) and (c) of the Public Records Law. Basis oft he appeal In the appeal petition Ms. Steinberg indicates "[a]gain, they provided zero additional

Joslin Murphy, Esq. SPR20/0191 Page 4 February 14, 2020 records, citing exemptions. I wish to appeal this letter to the Supervisor of records." Based on the appeal petition, I find the basis of Ms. Steinberg's appeal is unclear. In the Town's response, it identifies the specific records it possesses; a memo, notes, a video recording, and certain email records. The Town further claims Exemptions (a), (c), and (e), to withhold these records from disclosure. Accordingly, it is unclear whether Ms. Steinberg objects to the Town's exemption claims, and if so, Ms. Steinberg has not explained the basis of this objection. It is additionally unce1iain whether Ms. Steinberg objects to the withholding of the records she may already possess, as the Town, nonetheless, claims they are exempt from disclosure. Consequently, this office is unable to opine on the appeal at this time. See 950 C.M.R. 32.08(1)(£) (all petitions for appeal shall be in writing and shall specifically describe the nature of the requestor's objections to the response or failure to issue a timely response). Ms. Steinberg may wish to clarify the nature of the objections. Sincerely, Rebecca S. Murray Supervisor of Records cc: Lonna Steinberg