Collin Dias v. Fall River, City of - Public Schools (SPR 20211403)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2021 SPR21/1403 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 the following records, “[t]he individual evaluations from each school Committee member on Superintendent … [including] the most recent evaluations completed.” Previous appeals This request was the subject of previous appeals. See SPR21/0900 Determination of the Supervisor of Records (April 21, 2021); SPR21/1145 Determination of the Supervisor of Records (May 19, 2021). On June 3, 2021 the School provided a response. Unsatisfied with the School’s response, Mr. Dias appealed and SPR21/1403 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(d)(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 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 SPR21/1403 Page 2 June 17, 2021 burden of establishing the applicability of an exemption). The School’s June 3rd response In its June 3rd response, the School cited Exemption (c) of the Public Records Law and explained, “… [t]he information sought is not available from other sources … disclosure would result in personal embarrassment to a person of normal sensibilities [and] [t]he information sought includes intimate details of a highly personal nature.” 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

Debra Cabral SPR21/1403 Page 3 June 17, 2021 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 June 4th response, the School stated, “[i]n the present matter, the four (4) evaluators whose individual comments are being sought chose not to share their individual evaluations in an open meeting, and instead chose to maintain the confidentiality of their individual input. It would undermine public policy to allow an individual to make an end-run around the built-in limitations of the open meeting law by providing unfettered access to these individual evaluations through a public records law request.” The School further asserted, “... in considering the three (3) PETA factors and balancing the public's right to know with the relevant privacy interests at stake, while all three factors apply, particular weight and deference should be given to the protection of the requested information provided by the open meetings law. An appropriate balance to the competing interests is attained by releasing all of the individual rating scales and redacting the evaluators' names and individual comments.” Upon review of the balancing test, it is unclear how a privacy interest of government officials conducting public business outweighs the public interest in this situation. The public has a recognized interest in knowing whether evaluators are carrying out their duties in a law abiding and efficient manner. Consequently, I find that the School has not met its burden to withhold the names of the evaluators. Order Accordingly, the School is ordered to provide Mr. Dias with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. 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