Collin Dias v. Fall River, City of - Public Schools (SPR 20210900)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 21, 2021 SPR21/0900 Debra Cabral Records Access Officer Fall River Public Schools 417 Rock Street Fall River, MA 02720 Dear Ms. Cabral: I have received the petition of Colin Dias appealing the response of the Fall River Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 16, 2021, Mr. Dias requested “[t]he individual evaluations from each school Committee member on Superintendent … [including] the most recent evaluations completed.” On March 26, 2021, the School responded. Unsatisfied with the School’s response, Mr. Dias appealed and SPR21/0900 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 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. The School’s March 26th response On March 26th the School provided four evaluations and cited Exemption (c) to withhold the other requested evaluations. 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

Debra Cabral SPR21/0900 Page 2 April 21, 2021 Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). 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 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 Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Analysis under 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. 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). When analyzing a privacy claim, there is 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 School stated, “[i]n accordance with M.G.L. c. 30A, § 22(e), composite and individual evaluations, created by members of a public body for the purpose of a performance evaluation, are subject to disclosure only when such records are used by the public body in an open meeting. See OML 2017-188. Therefore, not all of the individual evaluations that you are requesting are required to be disclosed under the Open Meetings Law. Additionally, although your request was made only pursuant to the Open Meetings Law, please note that the individual performance evaluations that were not used at the March 8, 2021 public meeting are

Debra Cabral SPR21/0900 Page 3 April 21, 2021 also exempt from disclosure under the Public Records Law, as personnel information. M.G.L. c. 4, § 7(26)(c). Individual performance evaluations are precisely the type of information useful in making employment decisions and are therefore exempt pursuant to the first clause of M.G.L. c. 4, § 7(26)(c).” The School has not demonstrated that the requested records can be withheld in their entirety as personnel information pursuant to Wakefield Teachers Ass’n v. School Comm., 431 Mass. at 792. Also, the School did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. As a result, I find that the School has not met its burden of demonstrating how the performance evaluations can be withheld in their entirety. Conclusion Accordingly, the School is ordered to provide Mr. Dias with a response to his request in a manner consistent with the Public Records Law and its Access Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colin Dias