Joe Difazio v. Hull, Town of - Public Schools (SPR 20200924)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 23, 2020 SPR20/0924 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.” Previous appeal This request was the subject of a previous appeal. See SPR20/0755 Determination of the Supervisor of Records (May 22, 2020). On June 8, 2020, the Department sent a supplemental response. Unsatisfied with the Department’s response, Mr. DiFazio petitioned this office and SPR20/0924 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 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 SPR20/0924 Page 2 June 23, 2020 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). The Department’s June 8th response In its June 8th response, the Department responded through its legal counsel Kevin S. Freytag, Esq. of Murphy Hesse Toomey & Lehane, LLP and provided a supplemental response claiming that the report is personnel information and exempt from disclosure under Exemption (c). G. L. c. 4, § 7(26) (c). The Department provided analysis asserting, in pertinent part, that the investigation report sought in the request is similar to the disciplinary report cited in Wakefield Teacher's Ass'n v. School Comm. of Wakefield, 431 Mass at 792. The Department further opined that the report, “is absolutely exempt from disclosure under the plain language of G. L. c. 4, s. 7, Twenty-sixth (c).” In camera inspection In order to facilitate a determination as to the applicability of the Department's claims under Exemption (c) to withhold the records in their entirety, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record, See 950 C.M.R. 32.08(4). 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. Massachusetts 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 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

Judith Kuehn SPR20/0924 Page 3 June 23, 2020 community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph DiFazio