Joe Difazio v. Hull, Town of - Public Schools (SPR 20200670)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor ofR ecords April 5, 2020 SPR20/0670 Judith E. Kuehn Superintendent of Schools Hull Public Schools 18 Harborview Road Hull, MA 02045 Dear Superintendent 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, § 1O A; 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 [a n 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 worldtown issued phone." Prior Appeal This request has been the subject of a previous appeal. See SPR 20/0470 Determination of the Supervisor of Records (April 19, 2020). In my April 19th determination, I found that the District had not met its burden to withhold responsive records, in their entirety, pursuant to Exemption (c). The District provided Mr. Difazio with a supplemental response on April 17, 2020, indicating that it is in possession of communications responsive to Mr. Difazio's request, and withholding these communications pursuant to the personnel and privacy clauses of Exemption ( c ). Unsatisfied with this response, Mr. Difazio petitioned this office and this appeal, SPR20/0670, was opened as a result. 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 SPR20/0670 Page2 April 5, 2020 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. Appeal In its April 17, 2020 response, the District indicates that it is withholding responsive communications pursuant to the personnel and privacy clauses of Exemption (c). 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 patiicular 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

Judith E. Kuehn SPR20/0670 Page 3 April 5, 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 if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). With respect to the personnel clause, the District states that responsive records "are exempt by the First Clause of Exemption ( c) because the contents of the communications are useful to the District in making employment decisions regarding a particular employee .... " 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 how the responsive communications fall into the "core categories" of personnel records identified in Wakefield. See Wakefield, 431 Mass. at 798. 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

Judith E. Kuehn SPR20/0670 Page 4 April 5, 2020 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 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 states that "release of the communications could result in embarrassment to the former student as well as Mr. Devine. Accordingly the communications described above are exempt from disclosure under the Second Clause of Exemption (c)." Based on the District's response, I find it has met its burden to show how the privacy clause of Exemption ( c) applies to the identity of the student identified in the records. However, it is unclear whether the privacy clause applies to permit the withholding of the responsive messages in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exempts are narrowly constrned and are not blanket in nature). The District must clarify this matter. 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