David Forth v. Whitman Hanson Regional School District (SPR 20200898)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2020 SPR20/0898 George Ferro Assistant Superintendent – Records Access Officer Whitman-Hanson Regional School District 610 Franklin Street Whitman, MA 02382 Dear Assistant Superintendent Ferro: I have received the petition of David Forth appealing the response of the Whitman- Hanson Regional School District (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 14, 2020, in response to a previous request, the District provided Mr. Forth with a copy of the settlement/employment separation agreement. On May 20, 2020, Mr. Forth requested to receive the following records electronically: 1. All information relating to an [identified person’s] response to the termination letter the District sent [the identified person]; 2. All information relating to [the identified person’s] termination; 3. All information pertaining to the [identified person’s] reasoning for the dispute; 4. A copy of the termination letter sent to [the identified person] on October 2, 2019; 5. Any audio, footage, and any other documents relating to [the identified person’s] termination; and 6. Any additional information pertaining to the settlement agreement made between [the identified person] and the District. Additionally in his request, Mr. Forth states, “I am requesting ALL information. Including information relating to [the identified person] that is NOT stored in her personal file. As well as any relating information that is stored in [the identified person’s] personal file.” By email on May 26, 2020, the District acknowledged Mr. Forth’s May 20th request. On June 1, 2020, the District provided Mr. Forth with a response informing him that it has no records responsive to his requests, except for his request for the termination letter regarding the identified person. The District withheld the termination letter pursuant to Exemption (c) of the Public Records Law. 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

George Ferro SPR20/0898 Page 2 June 17, 2020 On June 5th, Mr. Forth petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In addition to the District withholding the termination letter, Mr. Forth contends, “[t]he District claims the [District] doesn’t have any [records]. However, said records…have to exist, even if the records are not in the possession of the District.” Mr. Forth should be advised, under the Public Records Law, the District is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). 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 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). Exemption (c) The District withheld the requested termination letter pursuant to Exemption (c) of the Public Records Law. Based on the District’s June 1st response, it is unclear which clause of Exemption (c) the District is claiming. 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). 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

George Ferro SPR20/0898 Page 3 June 17, 2020 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 Publ’g Co. v. Register of Probate for Norfolk Cnty., 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). Second clause of (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).

George Ferro SPR20/0898 Page 4 June 17, 2020 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. Based on the District’s June 1st response, I find that the District has not met its burden of specificity in claiming Exemption (c) to withhold the termination letter. Burden of specificity in claiming exemptions The District denied Mr. Forth’s request for the termination letter under Exemption (c) without providing any support for its exemption claim to withhold the record. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 ------------------------------- Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The District did not meet its burden of demonstrating how the responsive record, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Mr. Forth also contends in his petition to the Supervisor, “the District claims….[it] doesn’t have any [records]. However, said records along with other records mentioned in the request have to exist, even if they are not with [the District]. I am requesting the District provides me with those documents, or directs me to the individual or municipality that has them.” In light of Mr. Forth’s petition, it is unclear whether the requested records are in the possession of the District or a different known entity, I find the District must clarify this issue. See G. L. c. 66, § 10(b)(iii) (a records access officer must identify the agency or municipality that may be in possession, custody or control of the public record sought, if known). Conclusion Accordingly, the District is ordered to provide Mr. Forth with a response, 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.

George Ferro SPR20/0898 Page 5 June 17, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: David Forth