Zane Razzaq v. Framingham, City of - Public Schools Department (SPR 20211810)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 4, 2021 SPR21/1810 Amy Kane Department RAO Schools Department City of Framingham 150 Concord St. Framingham, MA 01702 Dear Ms. Kane: I have received the petition of Zane Razzaq of the MetroWest Daily News appealing the response of the City of Framingham Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 13, 2021, Mr. Razzaq requested: “(1) Emails between Superintendent and Identifed Individual from March 15 to present, including any attachments; (2) Any contracts regarding Identified Indivdual’s employment as King Elementary School Principal, including any separation agreements or any agreements regarding the end of employment; and (3) Any reports provided to or produced by the Framingham Public Schools regarding Identified Individual from the year 2021.” The School provided a response to Mr. Razzaq on July 15, 2021. Unsatisfied with the School’s response, Mr. Razzaq petitioned this office and this appeal, SPR21/1810, 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. 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

Amy Kane, RAO SPR21/1810 Page 2 August 4, 2021 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. G. L. c. 66, § 10(b)(iv). 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 July 15th Response In its July 15, 2021 response, the School stated, “the following documents have either been withheld or redacted.” The School listed the withheld records which included emails; a contract regarding the end of employment; and an investigative report. The School further stated that “[n]one of these records meet the definition of public records because they fall within exemption (c) of the public records law” regarding personnel information. The Schooled explained that the withheld emails between Dr. Tremblay and a third-party seeking a leave of absence “fits squarely into both clauses of the exemption.” The School further explained that “if a contract existed regarding the end of employment, this document would also fall under the first clause of exempt under the first clause of exemption (c) of G.L. c. 4, §7(26) because it is a personnel record, that would publicly identify [individual], and would be considered useful in making employment decisions regarding [individual] and would, by definition, involve the termination of her employment.” Lastly, regarding the witheld investigative report, the School claimed the record “falls squarely within the first clause of exemption (c). See Wakefield Teachers Association v. School Committee of Wakefield, et al., 431 Mass. 792 (2000) (holding that an investigatory report, compiled to determine whether or not a teacher had acted improperly fell within the personnel records exemption).” Exemption (c) Exemption (c) permits the withholding of: 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).

Amy Kane, RAO SPR21/1810 Page 3 August 4, 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y 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. This exemption does not protect all data relating to specifically named individuals. Rather, 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) ---------------------------- (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires 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. Based on the July 15th response,, I find the School has not met its burden to withhold the report under Exemption (c). Particularly, while portions of the record may fall within an exemption, it is uncertain how the report, in its entirety, constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, upon review of the balancing test, it is unclear how a privacy interest of a government official conducting public business outweighs the public interest in this situation. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Also, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The School must clarify this matter. Conclusion Accordingly, the School is ordered to provide Mr. Razzaq 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.

Amy Kane, RAO SPR21/1810 Page 4 August 4, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Zane Razzaq, MetroWest Daily News