Mark Mancini v. Falmouth, Town of - Public Schools (SPR 20211608)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 13, 2021 SPR21/1608 Lori S. Duerr, Ed.D. Superintendent of Schools Falmouth Public Schools 340 Teaticket Highway East Falmouth, MA 02536 Dear Dr. Duerr: I have received the petition of Mark Mancini appealing the response of the Falmouth Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 4, 2021, Mr. Mancini requested “the independent report conducted by Discrimination and Harassment Solutions that was conducted over a three-month period between January and May of . . . 2021.” Previous Appeal This request was the subject of a previous appeal. See SPR21/1495 Supervisor of Records Determination (June 29, 2021). I closed my June 29th determination based on the School providing a supplemental response to Mr. Mancini on June 25, 2021. Unsatisfied with the School’s June 25th response, Mr. Mancini 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 establishing the applicability of an exemption). To meet the specificity requirement a custodian 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

Lori S. Duerr, Ed.D. SPR21/1608 Page 2 July 13, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. Current Appeal In his appeal petition Mr. Mancini cites Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003). He argues that he does “not believe that one public agency should be held to a different standard than any other. Though police do have an enormous amount of responsibility by the nature of the business; our schools should be held to at least the same standard as they are responsible for the education of our children.” He further contends that “[t]his was a complaint of misconduct against a group of public employees, though their personnel records are exempt, the investigation into a complaint of misconduct must be allowed to be scrutinized by the public, especially for employees who are entrusted with the care of children.” The School’s June 25th Response In its June 25, 2021 response, the School claims to withhold responsive records pursuant to Exemption (c) of the Public Records Law. 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).

Lori S. Duerr, Ed.D. SPR21/1608 Page 3 July 13, 2021 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 the School’s June 25, 2021 response, an attorney for the School explains the following: In the matter at issue here, Falmouth referred the complaint to [a third party] for investigation. Over the course of several weeks, the complainant filed additional complaints against the administrator and against others. In April, 2021, [the third party] submitted individual reports documenting her investigation of each complaint, including one related to the administrator. The extensive reports include the results of interviews with multiple witnesses employed by the [School] and review of many exhibits. The School further explains that the third party “conducted the investigation on behalf of the [School] District. The Superintendent had the discretion to appoint an expert to investigate the complaints . . . [and the] Superintendent alone retained the authority to consider a disciplinary response.” The School further argues “any attempt to redact exempt portions or the report or ‘protect witnesses’ would eviscerate the investigation, lead to useless hypothesizing regarding the missing parts and serve no public purpose.” In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the School to withhold the responsive records, the School must provide this office with un-redacted copies 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.

Lori S. Duerr, Ed.D. SPR21/1608 Page 4 July 13, 2021 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. 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. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the School is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mark Mancini Joan L. Stein, Esq.