David Tefft v. Holyoke, City of - Public Schools (SPR 20211237)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2021 SPR21/1237 Samantha Garcia Records Access Officer Holyoke Public Schools 57 Suffolk Street Holyoke, MA 01040 Dear Ms. Garcia: I have received the petition of David Tefft appealing the response of the Holyoke Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 9, 2021, Mr. Tefft requested the following: [1.] [A]ny and all salaries for all staff at HHS Dean Campus. [2.] [A]ny and all documentation on applicants for the Diesel Technologies Instructor from July 2018 to present including but not limited to emails, applications, offers, acceptance and job descriptions. The School responded on April 22, 2021, providing records responsive to the first item, and records responsive to the request for a job description in the second item. The School withheld other records responsive to the second item under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the School’s response, Mr. Tefft appealed, and this case 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 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

Samantha Garcia SPR21/1237 Page 2 June 1, 2021 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. Current Appeal In his appeal petition, Mr. Tefft contends “that [his] request could have been fulfilled by redacting out the names and address[es] of the applicants.” The School’s April 22nd Response In its April 22, 2021 response, the School asserts that “the requested employment application materials are exempt from disclosure pursuant to M.G.L. c. 4, § 7(26)(c) because they are ‘personnel files or information . . . the disclosure of which may constitute an unwarranted invasion of personal privacy.’” 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). 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. 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

Samantha Garcia SPR21/1237 Page 3 June 1, 2021 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. Under Exemption (c), the School argues the following: The individuals pursuing teaching positions within the [School] District have a vital interest in having the confidentiality of their pursuit of employment opportunities maintained. The disclosure of a specifically named individual’s pursuit of new employment could jeopardize their current employment and/or their pursuit of other employment. Furthermore, an individual applicant’s failure to secure a job offer could result in personal embarrassment. The application process for the Diesel Technologies Instructor position is conducted in confidence, unlike, for example, the public process of a school Superintendent application. There is no compelling public interest in disclosure of the requested employment application information that would substantially outweigh the privacy interests of the individuals who would be affected by the disclosure. The School’s May 21st Response In a letter to this office and copied to Mr. Tefft on May 21, 2021, an attorney for the School further asserts that “the public records being sought are the subject of a dispute that is in active litigation at the Massachusetts Commission Against Discrimination.” In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the School to withhold responsive records in their entirety, the School must provide this office with an un-redacted copy of a representative sample of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the School’s custody and issue an opinion on the public or exempt nature of the records. 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. Mass. 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.

Samantha Garcia SPR21/1237 Page 4 June 1, 2021 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 community. Order Accordingly, the School is ordered to provide this office with an un-redacted copy of a representative sample of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Tefft Leigh W. Mello, Esq.