David Forth v. Whitman Hanson Regional School District (SPR 20201182)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 29, 2020 SPR20/1182 George Farro Assistant Superintendent Whitman-Hanson Regional School District 610 Franklin Street Whitman, MA 02382 Dear Mr. Farro: 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). Specifically, Mr. Forth requested information related to the termination of a certain employee. Previous Appeal This request has been the subject of a previous appeal. See SPR20/0898 Determination of the Supervisor of Records (June 17, 2020). In my June 17th determination, I found that the District had not met its burden to withhold responsive records pursuant to Exemption (c), and ordered the District to provide a response including additional explanation regarding its Exemption (c) claim, and clarify whether it possesses any additional responsive records. The District responded on June 30, 2020, indicating that it is withholding a termination letter pursuant to the personnel clause of Exemption (c), and stating that it does not possess any other responsive records. Unsatisfied with the District’s response, Mr. Forth petitioned this office and this appeal, SPR20/1182, 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). 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 Farro SPR20/1182 Page 2 July 29, 2020 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. G. L. c. 66, § 10(b)(iv). Current Appeal In its June 1, 2020 response, the District indicates that it is withholding a termination letter pursuant to Exemption (c). In its June 30, 2020 response, the District clarifies that it is claiming the personnel clause of Exemption (c) to withhold the letter. 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 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

George Farro SPR20/1182 Page 3 July 29, 2020 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). Based on the District’s response, I find that the requested record, a termination letter, is of the type identified by the court in Wakefield as subject to withholding pursuant to the personnel clause. See Wakefield, 431 Mass. at 798. The basis of Mr. Forth’s petition appears to be his assertion that the public interest in the requested termination letter outweighs the privacy interest involved. However, as described above, Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co., 388 Mass. at 432-33. The second clause of Exemption (c) 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. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,291 (2017). The Supreme Judicial Court found that the personnel clause of Exemption (c) is not subject to the same analysis as the second clause. See Globe Newspaper Co., at 433-34. Additional Responsive Records In my June 17th determination, I found it was unclear whether the District possessed additional responsive records. In its June 30th response, the District confirmed that it does not possess any additional records responsive to Mr. Forth’s request. Under the Public Records Law, a records custodian has no obligation to create a record in response to a public records request. 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). Conclusion Whereas I find the District may permissibly withhold the termination letter pursuant to the personnel clause of Exemption (c), and the District has informed Mr. Forth that it does not possesses additional responsive records, I find it has met its burden in responding to this request. Accordingly, I will consider this administrative appeal closed. If Mr. Forth is not satisfied with the result 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).

George Farro SPR20/1182 Page 4 July 29, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: David Forth