Raphael Brickman v. Andover, Town of - Public Schools (SPR 20210040)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 22, 2021 SPR21/0040 Nicole Kieser Andover Public Schools 36R Bartlet Street Andover, MA 01810 Dear Ms. Kieser: I have received the petition of Raphael Brickman appealing the response of the Andover Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 14, 2020, Mr. Brickman requested “. . . personnel records pertaining to [an identified individual] and the circumstances surrounding her ‘resignation’ in October 2009. Given the fact that she is a finalist for the Interim Superintendent position, it is imperative to determine if the circumstances of her departure in the record accurately reflect what took place with our son . . . at the time. . . .” The School responded on December 28, 2020, providing certain records and denying access to other portions pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the School’s response, Mr. Brickman petitioned this office and this appeal, SPR21/0040, was opened as a result. While this appeal was pending, the School provided a supplemental response on January 11, 2021. 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. 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

Nicole Kieser SPR21/0040 Page 2 January 22, 2021 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. The School’s December 28th and January 11th responses In its December 28, 2020 response, the School enclosed a copy of the identified individual’s “. . . letter of resignation, her employment contract effective July 1, 2004 to June 30, 2008 and the June 2009 and June 2010 extensions of the original contract,” and her evaluation. The School indicated that the remainder of the records in the identified individual’s personnel file is either not applicable to Mr. Brickman’s request or exempt from disclosure under Exemption (c). The School explained that the records are exempt, “. . . because they contain information that could be useful in evaluating the employee, as well as information that is of a highly personal nature regarding the individual, the disclosure of which would be an unwarranted invasion of their personal privacy, both within the meaning of exemption ‘c’, G.L. c. 4, sec. 7, clause twenty-sixth (c).” The School stated that Mr. Brickman’s “. . . request references records which might be pertinent to [his] family in [the identified individual’s] personnel file. There is no such record; however, such documentation may be a part of your child’s student record. Should you choose to request your child’s record, [the School] ask[s] that you contact your principal. [The School] do[es] not have access to student records, as they are not considered public records.” In the School’s January 11, 2021 supplemental response, the School stated that although it does not possess records that fit Mr. Brickman’s specific request, it has provided the above records. The School reiterated that the remainder of the records in the personnel file is either not covered or responsive to Mr. Brickman’s request or exempt from disclosure under Exemption (c). The School noted that, if Mr. Brickman is seeking records regarding his family, it would not be in the identified individual’s personnel file, because “. . . records regarding students are not in personnel files of employees, and they are separately maintained by the respective schools.” In an email correspondence on January 11, 2021, Mr. Brickman states that the records that have been produced are “. . . all useless and not what I requested. What I am hoping to determine is if the record keeping in the Town of Andover could have let such egregious conduct by an executive leader of a town department go unrecorded, thereby making her eligible to be hired as she has been. It is my belief that if it had been factually documented, she would have been ineligible to be rehired. That is the information I want. I don’t even need to see it. I would be comfortable with an attorney from your office just determining if it is even there. The other stuff [the School] sent was useless.” Based on Mr. Brickman’s statement above, it is unclear what the basis of his appeal is. It is additionally uncertain what specific records Mr. Brickman is requesting. If Mr. Brickman is looking for records pertaining to his son, he may request the information from the respective school as indicated in the School’s response. Otherwise, he may clarify the records he is seeking. Please note, the School is not required to create a record in response to a public records request.

Nicole Kieser SPR21/0040 Page 3 January 22, 2021 See G. L. c. 66, § 6A(d). Mr. Brickman may resubmit an appeal to this office once the appeal has been clarified. See 950 C.M.R. 32.08(1)(f) (all petitions for appeal shall be in writing and shall specifically describe the nature of the requestor’s objections to the response or failure to provide a timely response). Conclusion Accordingly, I will consider the administrative appeal closed. Mr. Brickman may appeal the substantive nature of the School’s responses within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Raphael Brickman