Michelle Loubert v. Lenox, Town of - Public Schools (SPR 20212350)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 27, 2021 SPR21/2350 Melissa Falkowski Assistant Superintendent of Business & Operations Lenox Public Schools 6 Walker St. Lenox, MA 01240 Dear Ms. Falkowski: I have received the petition of Michelle Loubert appealing the response of the Lenox 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 28, 2021, Ms. Loubert requested, “a copy of the camera recording of [a] fall that occurred approximately 7:45 - 8:00 a.m. on Friday, July 9.” Previous appeal This request was the subject of a previous appeal. See SPR21/2168 Determination of the Supervisor of Records (September 2, 2021). The School provided a response on September 12, 2021. Unsatisfied with the School’s response, Ms. Loubert petitioned this office and this appeal, SPR21/2350, 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. 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

Melissa Falkowski SPR21/2350 Page 2 September 27, 2021 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 September 12th Response On September 12, 2021, the School provided a response stating it “cannot provide the video requested in accordance with G. L. c. 4, § 7(26)(c), which is sometimes called the ‘Privacy Exemption.’ The language of the exemption limits its application to: personnel and medical files; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. The second clause of the privacy exemption applies to requests for records that implicate privacy interests.” The School further explained, “[i]n this case, the video requested seeks footage of an accident involving an employee. It thus is protected under Exemption C as it is information of an intimate nature, the disclosure which would be an unwarranted invasion of personal privacy. Because the video shows an accident, it would disclose information on a medical condition of an employee. The privacy interest outweighs the public's right to know about a singular incident involving an individual. Thus, the District cannot disclose the video.” In response to Ms. Loubert’s appeal to this office, the School provided that “Ms. Loubert acknowledges that there is a privacy interest and that the incident in the video is part of an ongoing personnel matter, but states that because she is the subject of the video, she is entitled to it.” The School claimed that under the Public Records Law “it does not matter whether Ms. Loubert is the subject of the video. She would not be entitled to any greater access than any other person. Access is based on the content of the record, which is confidential for the reasons we outlined and is further buttressed by Ms. Loubert’s letter.” 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). 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.

Melissa Falkowski SPR21/2350 Page 3 September 27, 2021 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. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the School to withhold responsive records, I request that the School provide this office 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 your custody and issue an opinion on the public or exempt nature of the record. 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. 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

Melissa Falkowski SPR21/2350 Page 4 September 27, 2021 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: Michelle Loubert