Lonna Steinberg v. Brookline, Town of - Office of the Town Counsel (SPR 20200445)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 16, 2020 SPR20/0445 Joslin Murphy, Esq, Town Counsel Town of Brookline 333 Washington Street, 6111 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 also 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, of November 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. SPR20/0445 Page 2 March 16, 2020 Previous appeals The requested records were the subject of previous appeals. See SPR19/2514 Determination of the Supervisor of Records (January 6, 2020) and SPR20/0191 Determination of the Supervisor of Records (February 4, 2020). In my February 4th determination, I indicated that the basis of Ms. Steinberg's appeal was unclear, and accordingly, directed her to clarify her objections to the Town's response. Subsequently, Ms. Steinberg clarified the nature of her objections and this appeal, SPR20/0445, was opened as a result. Purpose of request; identity of requestor 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, § 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); 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. In her clarification letter on February 14, 2020, Ms. Steinberg states the following: The [Town] has stated that it has a memo from the Runkle school principal and claimed exemptions as to why they could not produce this memo. I do not believe the memo falls under the exemptions, so wish to appeal their lack of production of this memo. I also wish to appeal the lack of production of the witness and

Joslin Murphy, Esq. SPR20/0445 Page 3 March 16, 2020 investigation notes by Lisa Richardson that I asked for, as they are not personal to her, they were taken during an investigation into an incident that happened in the Public Schools of Brookline. I wish to request a determination by the Supervisor of Records of whether these documents actually fall under the exemptions listed by the Town of Brookline, or if they should be produced. The 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 records. The Town claims that these records are exempt from disclosure. Per Ms. Steinberg's clarification, this appeal pertains to the withheld memo and the HR Director's notes only. Memo In the Town's January 31st response, it indicates 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)." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Joslin Murphy, Esq. SPR20/0445 Page 4 March 16, 2020 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 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 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).

Joslin Murphy, Esq. SPR20/0445 Page 5 March 16, 2020 ·T his 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. Although portions of the responsive memo may fall within Exemptions (a) and (c), it is unclear how the record may be withheld in its entirety. The Town must explain whether segregable portions of the memo can be provided. 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, § 1O (a). Notes The Town also states that it possesses the HR Director's" ... notes of the witness interviews she conducted in connection with [a n 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." 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 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. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e). 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

Joslin Murphy, Esq. SPR20/0445 Page 6 March 16, 2020 transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such 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 were not part of such a governmental file. Although the Town indicates that the notes were personal to the HR Director and were not kept in a government file, the Town also indicates that the notes" ... have not been shared with anyone other than counsel." Consequently, in light of the fact that the notes have been shared with counsel, it is unclear how the notes can be considered "personal," and therefore, exempt pursuant to Exemption ( e) . The Town must clarify this issue. Conclusion Accordingly, the Town is ordered to provide Ms. Steinberg with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, ~~ Supervisor of Records cc: Lonna Steinberg