Mark Mancini v. Falmouth, Town of - Public Schools (SPR 20213143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2021 SPR21/3143 Lori Duerr, Ed.D Superintendent 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 November 18, 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 this year, 2021.” The School responded on December 1, 2021, denying the request. Unsatisfied with the School’s response, Mr. Mancini appealed, and this case was opened as a result. Previous Appeals A request for the same records was the subject of previous appeals. See SPR21/1495 Supervisor of Records Determination (June 29, 2021); SPR21/1608 Supervisor of Records Determination (July 13, 2021); SPR21/1608 Supervisor of Records Determination (July 27, 2021); SPR21/1608 Supervisor of Records Determination (August 16, 2021). In my July 27th determination, I closed SPR21/1608 in light of pending administrative matters, and in my August 16th letter, declined to reverse that decision. The School states in its December 1, 2021 response that the associated litigation has been resolved. 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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 Duerr, Ed.D SPR21/3143 Page 2 December 14, 2021 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. Att’y 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. The School’s December 1st and December 10th Responses In its December 1, 2021 and December 10, 2021 responses, the School claims to withhold responsive records based on Exemptions (a) and (c) of the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its December 10, 2021 response, the School cites G. L. c. 151B, § 5, which governs investigations conducted by the Massachusetts Commission Against Discrimination (MCAD), and provides in pertinent part:

Lori Duerr, Ed.D SPR21/3143 Page 3 December 14, 2021 The members of the commission and its staff shall not disclose what has occurred in the course of such endeavors, provided that the commission may publish the facts in the case of any complaint which has been dismissed, and the terms of conciliation when the complaint has been so disposed of. G. L. c. 151B, § 5. Regarding G. L. c. 151B, the School argues the following: Falmouth asserts that its Harassment and Discrimination Prevention Policy, (Policy ACA) . . . was developed in accordance with the mandates of M.G.L. Chapter 151B as well as Title VII, Title VI and other anti-discrimination laws. Indeed, the overview in Policy ACA mirrors the goal of Chapter 151 B to maintain an environment free from harassment and discrimination. . . . The investigation and with its numerous exhibits conducted on behalf of the District should be considered confidential to the same extent as an investigation conducted by the MCAD. Therefore, in addition to the confidentiality of personally identifiable information encompassed in the privacy exemption, the Report should be determined to be exempt from disclosure by statutory implication as well. 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 Prop. 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

Lori Duerr, Ed.D SPR21/3143 Page 4 December 14, 2021 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. Under Exemption (c), the School reiterates its previous argument that “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.” Additionally, the School argues that “the investigation at issue was generated pursuant to an internal school committee policy designed to protect a school employee from harassment and discrimination.” The School goes on to contend that: The litigation spawned by the complaint has been resolved to the mutual satisfaction of the parties. They, and multiple people interviewed with the assurance of confidentiality provided by the Policy, remain in the District. Release of the Report at this time would serve no public purpose and might well chill other employees from exercising their right under the law to be free from harassment and discrimination. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (a) and (c) claims 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 Duerr, Ed.D SPR21/3143 Page 5 December 14, 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