Joe Difazio v. Hull, Town of - Public Schools (SPR 20200755)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 22, 2020 SPR20/0755 Judith Kuehn Assistant Superintendent / Records Access Officer Hull School Department 18 Harborview Road Hull, MA 02045 Dear Ms. Kuehn: I have received the petition of Joseph DiFazio of The Patriot Ledger appealing the response of the Hull School Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 20, 2020, Mr. DiFazio requested, “[1] any investigation report or status update of the [named individual] matter by the school system or outside agency hired by the town, [2] any communications electronic or otherwise about an investigation, [3] any receipts, contracts, invoices by an outside vendor to conduct the investigation, [4] any material related to that investigation, and [5] estimated cost to the school for any outside investigations.” Unsatisfied with the Department’s response, Mr. DiFazio petitioned this office and SPR20/0755 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 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 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 Kuehn SPR20/0755 Page 2 May 22, 2020 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). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s May 4th response In its May 4, 2020 response, the Department responded through its legal counsel Kevin S. Freytag, Esq. of Murphy Hesse Toomey & Lehane, LLP and stated that, “any request for public record from the Town of Hull should be made to the Town and not the District.” Request 1 The Department stated with regard to Request 1 the investigation “report is exempt from disclosure under the Public Records Law by Exemption (c).” 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 - 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).

Judith Kuehn SPR20/0755 Page 3 May 22, 2020 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). In its May 4th response, the Department states, “the report … is exempt by the First Clause of Exemption (c) because the contents of the report are useful to the District in making employment decisions regarding a particular [named] employee.” The Department responded to the request for a status update and enclosed a copy of a press release. Burden of specificity; segregable portions The Department denied Mr. DiFazio’s request without identifying the records nor providing support for the withholding of the responsive records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 -------------------------------- Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. I find that the Department has not met its burden to withhold responsive records under the exemption described above; in particular, it has not identified which specific records it is withholding, nor has it provided specific reasons for the applicability of these exemptions as required by G. L. c.66, § 10(b )(iv). Further, the Department did not state whether the records could be redacted. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Requests 2 & 4 In its May 4th response “for any communications electronic or otherwise about an investigation” and for “any material related to that investigation,” the Department stated that the request does not reasonably describe the records sought and cited G.L. c. 66 § 10(a)(i) and Jaideep Chawla v. Department of Revenue, Suffolk Sup. No. 1 784CV02087, at 2 (January 23, 2019).” Further, the Department asserted in part that the request was too broad and the broad language would make it difficult for administrative personnel to interpret the scope of what is sought.

Judith Kuehn SPR20/0755 Page 4 May 22, 2020 I encourage Mr. DiFazio and the Department to communicate in order to facilitate producing records efficiently and affordably. Mr. DiFazio may wish to include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). All petitions for appeal "shall specifically describe the nature of the requestor's objections to the response or failure to timely respond." 950 C.M.R. 32.08(1)(f). Please be aware that the request must reasonably describe the records sought. G. L. c. 66, § 10(a)(i). Requests 3 & 5 The Department responded to the request “for any receipts, contracts, invoices by an outside vendor to conduct the investigation” and produced the responsive records. The Department asserted that the produced records will satisfy the request for “estimated cost to the school for any outside investigation.” Conclusion Accordingly, the Department is ordered to provide a response to Mr. DiFazio in a manner consistent with this order, the Public Records Law and its Regulations as soon as is 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: Joseph DiFazio