Zane Razzaq v. Framingham, City of - Public Schools Department (SPR 20213113)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2021 SPR21/3113 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 appeals This request was the subject of previous appeals. See SPR21/1810 Determination of the Supervisor of Records (August 4, 2021); See SPR21/2412 Determination of the Supervisor of Records (November 2, 2021). The School provided records for in camera review to this office. On November 11, 2021, the School provided a response to Ms. Razzaq. Unsatisfied with the School’s response, Ms. Razzaq petitioned this office and this appeal, SPR21/3113, 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

Amy Kane, RAO SPR21/3113 Page 2 December 8, 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. 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); -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 November 11th Response In its November 11, 2021 response, the School stated “the entire report is exempt from disclosure as it is a chronicle of a personnel investigation of the actions or inactions of various specifically identified employees, was prepared for the purpose of recommending discipline, and indeed, included recommendations with respect to discpline. [The School] maintain this position, as you know, both to protect the privacy of the affected employees and to ensure our ability to conduct thorough and competent personnel investigations. [The School’s] position is entirely consonant with the binding interpretation by the Supreme Judicial Court of the public records statute and its exceptions in Wakefield Teachers Ass’n v. School Committee of Wakefield., 431 Mass. 792 (2000).” The School further stated, “[t]he fact of that investigation, its report and findings, and Ms. Benabdallah’s rebuttal would all be useful in making employment decisions regarding he employment. Accordingly, those references should be redacted.” The School also explained in the November 11th response, “[i]n the interest of a final resolution, [the School] reexamined the MOU in conjunction with discussions from the supervisor’s office and have decided to release a redacted portion of the document, consistent with the principles articulated above and below. [The School] enclose with this, a copy of the MOU with the following additional explanation for those portions which remain redacted.” In addition regarding the MOU, the School claimed, “[s]pecifically, and as noted by the supervisor in its November 2, 2021 communication, Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013) explicitly permits the following categories of information to be withheld: entitlement to remain on administrative leave, requirement to tender or demand of a letter of voluntary resignation, a statement of resolution of all claims concerning termination of employment and prior disciplinary actions. Id. At 34-35.” The School maintained the “first clause of exemption c applies to all redactions, as this document is an agreement involving a resignation and the resolution of claims in connection with the end of an individual’s employment. [The School] also assert the applicability of the second clause of exemption c, regarding the protection of information relating to a specifically named individual(s), the disclosure of which may constitute an unwarranted invasion of privacy. Here, because it is impossible to separate the name in this matter from the context, it is appropriately redacted.”

Amy Kane, RAO SPR21/3113 Page 3 December 8, 2021 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). 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.

Amy Kane, RAO SPR21/3113 Page 4 December 8, 2021 Settlement agreements The controlling case for redactions made to a settlement agreement is Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). In the Globe decision, the court listed the following information as properly subject to redaction within a settlement agreement under the personnel clause of Exemption (c): (1) promotion of grade; (2) compensation at a different salary grade; (3) adjustment in compensation; (4) waiver of bumping rights and/or recall rights; (5) entitlement to remain on administrative leave; (6) requirement to tender a letter of resignation; (7) demand of voluntary resignation; (8) reinstatement; (9) layoff; (10) agreement by an agency to remove a letter from a personnel file; (11) agreement by an agency concerning the providing of references and their contents; (12) the requirement that an employee meet with a supervisor to review progress of assigned matters; (13) adjustment of an agency's records to reflect an employee's status; (14) adjustment or continuation of employee benefits, such as unemployment assistance, COBRA, and retirement benefits, and agreement regarding back wages; (15) recitations concerning grievances, including agreement to withdraw a grievance and acknowledgment by an employee of the absence of a pending grievance; (16) a statement of resolution of all claims concerning termination of employment and prior disciplinary actions, (17) agreement to turn in agency property, (18) global resolution involving the entering of a nolle prosequi by a prosecutorial official; (19) language affirming an agency's legitimate concern for discipline and an employee's receipt of a memorandum of verbal discipline; and (20) completion by an employer of harassment training. Globe Newspaper Co., Suffolk Sup. No. 11-01184-A at 34-35. Based on the the November 11, 2021 response, I find that the School’s response did not meet its burden to withhold the entire report and rebuttal in their 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 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). As mentioned above in the Novemeber 11th response, the School made redations to the MOU regarding, “entitlement to remain on administrative leave, requirement to tender or demand of a letter of voluntary resignation, a statement of resolution of all claims concerning termination of employment and prior disciplinary actions” citing specific categories articulated in Globe Newspaper Co. I find the School met its burden to redact the information at issue under

Amy Kane, RAO SPR21/3113 Page 5 December 8, 2021 Globe Newspaper Co., described above to justify each of these redactions. Lastly, the School explained the MOU redactions pertained to “the applicability of the second clause of exemption c, regarding the protection of information relating to a specifically named individual(s), the disclosure of which may constitute an unwarranted invasion of privacy. Here, because it is impossible to separate the name in this matter from the context, it is appropriately redacted.” It is uncertain whether any of the information is available from other sources. See PETA, 477 Mass. at 292. The School did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The School must further clarify this. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction.

Amy Kane, RAO SPR21/3113 Page 6 December 8, 2021 In the Novemeber 11, 2021 response, the School with regards to the report and rebutall stated, “that in addition to exemptions under subsection (c), both documents, in their entirety, are also exempt pursuant to G.L. c. 4, § 7 (26)(f).” The School explained the report was “commissioned for investigative purposes, to determine whether a violation of District Policies and/or the law had occurred, and, included a disciplinary recommendation. A Response to the report was submitted. Both documents are replete with personally identifiable witness information that cannot be segregated by mere redaction of witness names, including for individuals tangentially familiar with the District and its administration. The District reached a resolution with an impacted individual before concluding its investigation of allegations raised in the Response. Publishing these documents— which contain information that could impact the reputations of various witnesses (including current District employees) and directly discusses their qualifications for employment and work performance—would prejudice future investigations by, inter alia, chilling witness interest in reporting complaints and undergoing the investigative process. The public interest in reports of misconduct or unlawful conduct being brought forward and investigated to their conclusion is substantial.” To the extent the responsive records contain witness statements, these records may be redacted to protect the identities of any voluntary witnesses. However, based on the School’s November 11th response, it remains unclear how all of the information contained in the requested responsive records falls under Exemption (f). The School must clarify this. Conclusion Accordingly, the School is ordered to provide the requested records 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, er .fJ. ll • ~ .~_ ~ .·.. ·. ~~- Rebecca S. Murray Supervisor of Records cc: Zane Razzaq, MetroWest Daily News Alexandra L. Pichette, Esq.