Joe Difazio v. Hull, Town of - Public Schools (SPR 20200470)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 18, 2020 SPR20/0470 Judith E. Kuehn Interim Superintendent of Schools Hull Public Schools 18 Harborview Road Hull, MA 02045 Dear Ms. Kuehn: I have received the petition of Joe Difazio of The Patriot Ledger appealing the response of Hull Public Schools (the District) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Difazio requested: • "Any records, including electronic communication, letters, reprimands, and/or complaints, regarding any inappropriate behavior of [an identified individual] toward students and/or issues texting with students, and/or communications with students • Any texts and/or digital communications that [an identified individual] had with individual students from any work/town issued phone." The District provided Mr. Difazio with a response on March 2, 2020, withholding responsive records pursuant to Exemptions (c) and (f) of the Public Records Law. Unsatisfied with the District's response, Mr. Difazio petitioned this office and this appeal, SPR 20/0470, 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, § 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 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

Judith E. Kuehn SPR20/0470 Page 2 March 19, 2020 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. Appeal In its March 2, 2020 response, the District indicates that it is withholding responsive records pursuant to the personnel and privacy clauses of Exemption ( c ), as well as Exemption (f). 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 ofE xemption (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 comis 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). As a result, certain information that is considered personal in the ordinary sense of the word may be considered pmi of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westp01i, 401 Mass. 306,309 (1987).

Judith E. Kuehn SPR20/0470 Page 3 March 19, 2020 With respect to the personnel clause, the District states that responsive records "will be exempt from disclosure pursuant to Exemption ( c) - The Privacy Exemption ( c ), as it relates to personnel information." Based on the District's response, I find it has not met its burden to withhold responsive records pursuant to the personnel clause of Exemption (c). Specifically, it is unclear what records the District is withholding, and how those records fall into the "core categories" of personnel records identified in Wakefield. 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). The District must clarify this matter. Second clause ofE xemption (c)-privacy 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). 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 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. In its response, the District argues that "the disclosure of the above-mentioned records would identify persons related to the alleged misconduct thereby violating that person's privacy and revealing intimate details of a highly personal nature."

Judith E. Kuehn SPR20/0470 Page 4 March 19, 2020 Based on the District's response, I find it has not met its burden to withhold responsive records, in their entirety, pursuant to the privacy clause of Exemption (c). In particular, it is unclear what "intimate details of a highly personal nature" would be revealed by disclosure of the records. The District must clarify this matter. Exemption (I) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(£). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 3 71 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of · effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. With respect to Exemption (f), the District states that "[t]he Hull School Committee has retained an independent outside investigator to conduct an administrative review of the facts and circumstances of the allegations against Mr. Devine concerning misconduct. The District is not aware of any other allegations of misconduct against Mr. Devine." The District claims that

Judith E. Kuehn SPR20/0470 Page 5 March 19, 2020 "[r]ecords related to that administrative review are exempt from disclosure by Exemption (f) .... " The District states that "disclosure of these materials would likely alert any suspect of the administrative review to the activities of the independent outside investigator." Based on the District's response, I find it has not met its burden to withhold responsive records pursuant to Exemption (f). It is unclear from the District's response what specific records it is withholding, and whether all such records are "investigatory materials necessarily compiled out of public view." The District must clarify this matter. 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 District 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 District must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 1O (a). Conclusion Accordingly, the District is ordered to provide a response to Mr. Difazio, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Joe Difazio, The Patriot Ledger