Gary Floyd v. Collaborative for Educational Services (SPR 20200314)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 4, 2020 SPR20/0314 Arthur B. Scott HR Specialist Records Access Officer Collaborative for Educational Services 97 Hawley Street Northampton, MA O1 060 Dear Mr. Scott: I have received the petition of Gary Floyd appealing the response of the Collaborative for Educational Services (CES) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on February 10, 2020, Mr. Floyd requested "everything CES has regarding the investigation that was conducted in Teamworks Plymouth over a 51A in spring of 2017 ... [including] notes of the investigation ... conducted and any letters of discipline ... handed out ... [and] [the] names or initials of the employees who worked there and ... their start date and end date if they no longer work [there]." Tile 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). 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 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

A1ihur B. Scott SPR20/0314 Page2 March 4, 2020 custodian must provide the responsive records. CES's February 19'" response In its February 19th response, the CES denied access to responsive records under G. L. c. 4, §7(26) Exemption (c) and (e) of the Public Records Law and under Family Education Rights and Privacy Act (FERPA). With regard to Mr. Floyd's request for the names or initials of the employees who worked there and their start date and end date, CES responded that a time period was not specified and the responsive records are unable to be identified. Exemption (c) Exemption ( c) applies to: 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 ofE xemption (c) 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). 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. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal to warrant exemption. Globe Newspaper Co. 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1989). Neve1iheless, 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). As a result, certain information that is considered personal in the ordinary sense of the word may be 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).

Arthur B. Scott SPR20/0314 Page 3 March 4, 2020 Second clause ofE xemption (c) 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. Inc. (PETA) v. Department of Agricultural Resources, 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, 428 (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 o~taining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 292. 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. In its February 19th response, the CES states, "[t]he two investigative reports ... are not public records as defined by ... [Exemption] ( c) , which exempt personnel records ... the disclosure of which may constitute an unwarranted invasion of personal privacy. . .. these reports, as well as any discipline that may have been issued as a result of these investigations are personal and confidential personnel records, disclosure of which could be injurious to the individuals involved. To the extent that they disclose portions of the student records, these reports are also protected under the Family Education Rights and Privacy Act (FERP A)." Education records under FERP A are defined as: those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution 20 U.S.C. § 1232g; 34 CPR Part 99.

Arthur B. Scott SPR20/0314 Page 4 March 4, 2020 FERPA defines "personally identifiable· information" as including, but not limited to: (a) The student's name; (b) The name of the student's parents or other family member; (c) The address of the student or student's family; (d) A personal identifier, such as the student's social security number, student number, or biometric record; (e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name; (f) other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (g) information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates. See 34 C.F.R. § 99.3(g). The CES' February 19111 response did not contain the specificity required in a denial of access to public records. Instead, the CES' response simply cites Exemption (c) without any further explanation as to the exemption to the requested records. Although CES cited FERP A in an effort to withhold requested records, CES did not state an exemption under which FERPA records may be withheld. CES is not permitted to issue a blanket denial without providing any further information with respect to the requested records. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Based upon the CES response, it remains unclear how Exemption ( c) of the Public Records Law applies to the 51A investigation at Teamworks Plymouth in the spring of 2017. See G. L. c. 119 § 51A). CES must provide additional information regarding the nature of the responsive records, categories of records or portions of the records it intends to withhold under Exemption (c ) or any other exemption. It is also uncertain from the CES response whether some of the information can be redacted or is the type of information the second clause of Exemption (c) is designed to protect in the manner described in PETA. See PETA, 477 Mass. 280. 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

Arthur B. Scott SPR20/0314 Page 5 March 4, 2020 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. Therefore, the retention of materials in a working file would not bar the application of Exemption ( e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and not part of a governmental file. In its response, CES indicates in part that the investigator's notes from these investigations are personal and handwritten notes and notes were prepared by a public employee for its own use and not maintained as part of a government unit. In order for CES to claim Exemption ( e ), they must meet the criteria described above. Although CES indicates the notes were not maintained as part of a government unit, it is unclear whether the notes were shared. Therefore, CES has not met its burden of withholding these records under Exemption (e). With regard to the hire and termination dates of employees, CES stated in part in its February 19111 response that the time period was not specified and the responsive records are unable to be identified. Pursuant to G. L. c. 66, § 1O (a)(i), the request needs to reasonably describe the public records being sought. I encourage Mr. Floyd and CES to communicate in order to facilitate producing records efficiently and affordably. Mr. Floyd may wish to include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § lO(a)(i). CES must use its knowledge of the records to facilitate providing any responsive records. Conclusion Accordingly, CES is ordered to provide Mr. Floyd with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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, ~M~ Supervisor of Records cc: Gary Floyd