Lonna Steinberg v. Brookline, Town of - Office of the Town Counsel (SPR 20200813)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 3, 2020 SPR20/0813 Joslin Murphy, Esq. Town Counsel Town of Brookline 333 Washington Street, 6th Floor Brookline, MA 02445 Dear Attorney Murphy: I have received the petition of Lonna Steinberg appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 22, 2019, Ms. Steinberg requested three categories of records: 1. All records supporting the statement of Director of Human Resources Lisa Richardson in her letter to me of November 18, 2019 that “During the course of the investigation into retaliation, it has come to my attention that you may have engaged in behavior that could be construed as unprofessional and abusive toward Ms. Jean-Michel.” 2. All records supporting the statements of Director of Human Resources Lisa Richardson in her letter to my husband, Mike Offner, of November 4, 2019, that, “Taking into consideration all evidence gathered during the investigation, I was not able to substantiate your allegations. I found no evidence of any inappropriate conversations or other interactions between your daughter and Principal Jean- Michel. In fact, the evidence suggests the opposite in that the conversation was completely appropriate.” 3. All records created that reflect or were created as part of interviews with Lauren Vulcano, Jessica Turbidy, Sarah Hahesy, Genteen Jean-Michel, and “five additional witnesses” as referenced in the letter from Director of Human Resources Lisa Richardson to my husband, Mike Offner, of November 4, 2019. 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

Joslin Murphy, Esq. SPR20/0813 Page 2 June 3, 2020 Previous appeals The requested records were the subject of previous appeals. See SPR19/2514 Determination of the Supervisor of Records (January 6, 2020); SPR20/0191 Determination of the Supervisor of Records (February 4, 2020); and SPR20/445 Determination of the Supervisor of Records (March 16, 2020). In my March 16th determination, I found that the Town had not met its burden to withhold the memo under Exemptions (a) and (c). I also directed the Town to clarify how the HR Director’s notes can be withheld under Exemption (e) although it was shared with counsel. Subsequently, the Town provided a response on May 6, 2020, which provides additional information regarding its exemption claims. Unsatisfied with the Town’s response, Ms. Steinberg petitioned this office and this appeal, SPR20/0813, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Steinberg’s purpose in making the request has no bearing on the public status of any existing responsive records. 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); 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. 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.

Joslin Murphy, Esq. SPR20/0813 Page 3 June 3, 2020 Town’s May 6th response Notes 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. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). 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 such 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 were not part of such a governmental file. With respect to the notes, the Town clarifies that the notes were not shared with counsel as previously indicated. However, the Town explains that “. . . Director Richardson shared the fact of the existence of her notes with counsel for purposes of identifying records that were responsive to your request, and the basis of their non-disclosure. According to Director Richardson, these notes were prepared by and are personal to her; they were used by her and only her as an aid in preparing her response to the complaint against Principal Jean-Michel; their content has not been shared with any other employee; and they are not in the custody of or any file maintained by the Public Schools of Brookline. As such, they are exempt from disclosure in their entirety under Exemption (e) of the Public Records law.” Based on the above, where the Town clarifies that the HR Director’s notes were used by her as an aid in preparing her response to the complaint against the Principal, were not shared with anyone, and were not maintained as part of a governmental file, I find the Town has met its

Joslin Murphy, Esq. SPR20/0813 Page 4 June 3, 2020 burden to withhold the notes from disclosure under Exemption (e). Memo In its May 6, 2020 response, the Town states in regards to the memo that “[i]n response to a parent’s complaint to the Interim Superintendent about the manner in which Runkle Principal Jean-Michel responded to an incident involving students at her school, HR Director Richardson conducted an investigation. Principal Jean-Michel submitted the memo, which directly responds to the allegations of the complaint, to the HR Director in connection with her investigation. The memo describes the underlying incident in which the student left a ‘love note’ for another student, the names of the students involved in the incident, and Principal Jean- Michel’s response to the incident.” The Town asserts that “[t]he content of the memo is exempt from disclosure under exemption (a) because it contains information pertaining to certain identified students that is protected under FERPA and the Massachusetts law and regulations pertaining to student record information; under exemption (c) because its disclosure may constitute an unwarranted invasion of both students’ personal privacy; and under exemption (c) because it constitutes personnel record information pertaining to the Principal that if disclosed, can be expected to interfere with the proper performance of the governmental function of investigating personnel complaints. G.L. c. 4, s. 7, Twenty-sixth (c) and (a); Wakefield Teachers Association vs. School Committee of Wakefield, 431 Mass. 792 (2000).” With respect to providing segregable portions, the Town indicates that “[t]he memo does not lend itself to redaction of the students’ or their teacher’s names, largely because the complaint against the Principal was made public by the parent who made the complaint, and redaction of portions of the memo would not preserve their privacy or encourage future cooperation with investigations of personnel complaints.” The Town enclosed a fully redacted copy of the memo. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Joslin Murphy, Esq. SPR20/0813 Page 5 June 3, 2020 This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. 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 of Exemption (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 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

Joslin Murphy, Esq. SPR20/0813 Page 6 June 3, 2020 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). Second clause of Exemption (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 camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Town to withhold the memo from disclosure, the Town must provide this office with an un-redacted copy of the responsive memo for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Town’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an

Joslin Murphy, Esq. SPR20/0813 Page 7 June 3, 2020 in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, Town is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Lonna Steinberg