Zane Razzaq v. Framingham, City of - Public Schools Department (SPR 20212412)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 29, 2021 SPR21/2412 Amy Kane School Department RAO 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, Ms. Razzaq requested certain emails, contracts and reports. Previous appeal This request was the subject of a previous appeal. See SPR21/1810 Determination of the Supervisor of Records (August 4, 2021). The School provided a response on August 27, 2021. Unsatisfied with the School’s response, Ms. Razzaq petitioned this office and this appeal, SPR21/2412, 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. G. L. c. 66, § 10(b)(iv). 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 SPR21/2412 Page 2 September 29, 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); -se-e -a-ls-o 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The School’s August 27th Response In its August 27, 2021 response, the School stated, “[t]he report—in its entirety—is not a public record. The report, and any response, constitutes personnel records, because the information contained therein pertains to specific and identifiable employees and would be considered useful in making employment decision regarding those employees. Indeed, its very purpose including providing a recommendation with respect to any recommended action. Further, the complaints, allegations, finding and response would be embarrassing to a person of normal sensibilities and likely to cause damage to one or more employees’ reputations. The report, and any response, is therefore, exempt from disclosure under the first clause of exemption (c) of G.L. c. 4, §7(26).” The School explained that the report constituted personnel file or information because “[the School’s] situation is comparable with Wakefield in all material respects. Both concerned allegations of specific employee performance and action; both employers commenced an investigation to determine whether the allegations were sustainable; both investigations culminated in a written report which identified the individual employees involved and related to the alleged misconduct or performance; and both reports were considered in an employee disciplinary process.” The School further explained in its August 27th response “the investigator was engaged for the specific purpose of concluding whether an individual employee had violated District policies and what the response of the District should be. The report stays within the contours of the complaints, and is limited in its focus to personnel matters involving school district employees. Ultimately, the investigator did what she was asked to do: investigate a personnel matter. The questions she addressed were: whether a District policy was violated, and if so, what action he or she recommended that the District take. This is a classic personnel investigation.” Lastly, regarding withheld contracts relating to end of employment, the School claimed the document “identifies a particular employee, involves the end of [identified individual’s] employment, and its disclosure may constitute an unwarranted invasion of personal privacy. For these reasons, this document also fits squarely into the definition of a personnel record, exempt from disclosure.” 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

Amy Kane, RAO SPR21/2412 Page 3 September 29, 2021 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. 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). 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 August 27th response, I find the School has not met its burden to withhold the report in its entirety 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

Amy Kane, RAO SPR21/2412 Page 4 September 29, 2021 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 Ms. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Zane Razzaq, MetroWest Daily News Alexandra L. Pichette, Esq.