Joe Difazio v. Hull, Town of - Public Schools (SPR 20200822)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 4, 2020 SPR20/0822 Judith E. Kuehn Superintendent of Schools Hull Public Schools 18 Harborview Road Hull, MA 02045 Dear Ms. 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, § 10A; 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 Michael Devine toward students and/or issues texting with students, and/or communications with students • Any texts and/or digital communications that Michael Devine had with individual students from any work/town issued phone.” Prior Appeal This request has been the subject of a previous appeal. See SPR20/0670 Determination of the Supervisor of Records (May 5, 2020); SPR20/0470 Determination of the Supervisor of Records (April 19, 2020). In May 5th determination, I found that the District had met its burden to show how the privacy clause of Exemption (c) applies to the identity of the student identified in the records, but also found that it was unclear whether the privacy clause applies to permit the withholding of the responsive messages in their entirety. The District provided Mr. Difazio with a supplemental response on May 19, 2020, providing further explanation of its claim under the privacy clause of Exemption (c). Unsatisfied with this response, Mr. Difazio petitioned this office and this appeal, SPR 20/0822, 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 SPR20/0822 Page 2 June 4, 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, § 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. Appeal In its May 19, 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). 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

Judith E. Kuehn SPR20/0822 Page 3 June 4, 2020 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 its response, the District addresses whether segregable portions of the records can be provided, and states that “although it is possible to redact the former student's name from the communication, the District is concerned that the content of the communications, even with the redactions, could be used to identify the former student.” The District further explains that “the communications contain personal details regarding the former student that may be used to identify the former student. Therefore, the District believes that the privacy clause of Exemption (c) applies to permit the withholding of the responsive communications in their entirety.” Based on the District’s response that disclosure of the redacted records would permit indirect identification of the student named in the records, I find it has met its burden to show that the privacy clause of Exemption (c) permits the withholding of the responsive communications. Conclusion Accordingly, whereas I find the District may permissibly withhold the responsive records pursuant to the privacy clause of Exemption (c), I will consider this administrative appeal closed. If Mr. Difazio is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Joe Difazio, The Patriot Ledger