Dusty Christensen v. Department of Elementary and Secondary Education (SPR 20200634)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 16, 2020 SPR20/0634 Helene Bettencourt Associate Commissioner Primary Records Officer Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt, I have received correspondence from Dusty Christensen of the Daily Hampshire Gazette appealing the response of the Department of Elementary and Secondary Education (DESE) to a request for public records. G. L. c. 66, § 10(A); see also 950 C.M.R. 32.08(1). Specifically, on January 26, 2020, Mr. Christensen requested: “1.) Any communications - including but not limited to emails and their attachments, letters or phone messages-between the commission of elementary and secondary education, or his office, and Holyoke receiver and Superintendent … from Nov. 1, 2019 to present. 2.) Any letter of resignation submitted to DESE by Holyoke Receiver and Superintendent...” DESE responded and produced communications, but withheld the requested letter of resignation. Unsatisfied with the response, Mr. Christensen petitioned this office and SPR20/0634 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, § 10A(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 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

Ms. Helene Bettencourt SPR20/0634 Page 2 April 16, 2020 order to withhold a requested record. G. L. c. 66, § 10(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). DESE’s March 11th response DESE responded on March 11th and produced communications, which included three files containing emails, but denied access to the requested resignation letter pursuant to Exemption (c) of the Public Records Law. 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 - 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 courts 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

Ms. Helene Bettencourt SPR20/0634 Page 3 April 16, 2020 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). First clause of Exemption (c) - medical 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). DESE withheld the responsive resignation letter, citing the personnel and medical clause of Exemption (c). I find that the DESE's March 11th response did not meet its burden of specificity in withholding the letter of resignation, in its entirety, under the personnel and medical clause of Exemption (c). Burden of specificity; duty to segregate DESE denied Mr. Christensen's request without demonstrating how the personnel or medical clause of Exemption (c) of the Public Records Law supports the withholding of the responsive report in its entirety. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; see also 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). DESE must produce any non- exempt, segregable portions of the public records. G. L. c. 66, §10(a). Conclusion Accordingly, DESE is ordered to provide Mr. Christensen with a response to the request, provided 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.

Ms. Helene Bettencourt SPR20/0634 Page 4 April 16, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Dusty Christensen