Gary Floyd v. Collaborative for Educational Services (SPR 20200644)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe11>isor ofR ecords April 23, 2020 SPR20/0644 Arthur B. Scott HR Specialist Records Access Officer Collaborative for Educational Services 97 Hawley Street Northampton, MA 01060 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]." Previous appeal This request was the subject of a previous appeal. See SPR20/0314 Determination of the Supervisor of Records (March 3, 2020). Unsatisfied with CES' response, Mr. Floyd appealed and SPR20/0644 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) (written response must "identify any records, categories of records or potiions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific 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

Arthur B. Scott SPR20/0644 Page 2 April 23, 2020 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). CES' responses In its February 19th response CES denied access to responsive records under Exemptions (c ) and ( e) of the Public Records Law and the Family Education Rights and Privacy Act (FERP A). With regard to Mr. Floyd's request for the nanies 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. In its March 121h response, CES identified two documents responsive to the request. These responsive documents are two reports submitted to the CES Executive Director on June 26, 2017 and June 28, 2017, which included a summary of the documents. CES is withholding both of these records under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). With regard to the hire and termination dates of employees, CES provided a table containing the initials and dates of employment for the regular DYS teachers who were teaching full time at the program when the incidents occurred. 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) -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

Arthur B. Scott SPR20/0644 Page 3 April 23, 2020 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 part of a public record ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). 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 obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 4 77 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 March 12th response, CES asserts, "[t]he documents in question are investigative reports which clearly are personnel records ... since they contain information which is relevant to decisions made about employees by the Employer (CES) ... " CES also claimed the privacy clause of Exemption ( c) claiming that the documents meet the standards of personal

Arthur B. Scott SPR20/0644 Page 4 April 23, 2020 embarrassment to an individual of normal sensibilities and contain intimate details of a highly personal nature. · 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. 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 my March 4 determination I indicated that although CES indicates the notes were not maintained as part of a government unit, it was unclear whether the notes were shared. In its April 9th response, CES indicates that the investigator's notes from these investigations "are my own notes jotted down during the investigatory interviews in order to later assist me in preparing written reports ... and are always kept in [a] notebook which [is] not[ kept] at the agency [and] not share[d] ... with anyone." Basis of appeal In CES' response, it identifies the specific records being withheld under Exemption ( c) and provides further information regarding how the interview notes were maintained under Exemption (e). Further, CES provided a table showing the DYS full time teachers at the program when the incidents occurred. In his April 9th appeal, Mr. Floyd referenced Exemption ( e) and stated, " I have contacted [the] office about a public record request that [CES] pertaining investigations conducted in state

Arthur B. Scott SPR20/0644 Page 5 April 23, 2020 facilities ... They ... said what I was asking for did not fall under the purview of the public records law. . .. My question ... is whether [CES] [has]to comply with the public record law or does each individual agency just determine whether they feel like following it." Accordingly, it is unclear whether Mr. Floyd objects to the exemptions claimed by CES, and if so, what the basis of his objections is. I 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). Mr. Floyd may wish to modify and/or clarify the nature of the objections. Sincerely, Rebecca S. Murray Supervisor of Records cc: Gary Floyd