Frank Wood v. Tewksbury, Town of - Public Schools (SPR 20213187)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 20, 2021 SPR21/3187 Christopher Malone Superintendent of Schools Tewksbury Public Schools 139 Pleasant Street Tewksbury, MA 01876 Dear Superintendent Malone: I have received the petition of Frank Wood appealing the response of the Tewksbury 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 23, 2021, Mr. Wood requested the following: The application packet for [a named individual] (redacted for address, socials, and phone numbers) . . . the HR application, the cover letter and resume. Dates of application are important. Also . . . any email correspondence between anyone involved in the hiring process when [the individual] was a participant in the conversation. The School responded on December 7, 2021, citing Exemption (c) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(c). Unsatisfied with the School’s response, Mr. Wood appealed, and this case 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 agency or municipality 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Christopher Malone SPR21/3187 Page 2 December 20, 2021 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. 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. Current Appeal In his appeal petition, Mr. Wood contends that “these elements are in fact public record. They are not in a protected personnel file as the subject was not an employee at the time that these items would have been submitted.” The School’s December 7th Response In its December 7, 2021 response, the School claims to withhold responsive records pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). 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). 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). 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.

Christopher Malone SPR21/3187 Page 3 December 20, 2021 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). When analyzing a privacy claim, there is 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 argues the following: Each of these withheld records is maintained in a District employee’s personnel file and/or constitute “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,” given that they relate to the employment application of a specific employee. . . . [The] request also seeks materials relating to a specifically-named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. The individual’s privacy interests must be weighed against the public interest on a case-by-case basis. . . . The disclosure of an individual’s employment application records would result in personal embarrassment to an individual of normal sensibilities, employment application records are categorically sufficiently personal to warrant exemption from disclosure (see Wakefield), and the personnel records withheld are not available to the public from other sources. Safeguarding school staff members’ reasonable and long-standing expectation of privacy in their personnel records outweighs any public interest in disclosure. Moreover, the individual whose records you seek has not consented to the disclosure of her personal information. Based on the School’s response, it is not clear how the responsive records involve intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. The School must 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. See PETA, 477 Mass. at 292. Additionally, the School must explain whether segregable portions of the responsive records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the

Christopher Malone SPR21/3187 Page 4 December 20, 2021 statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). As a result, I find that the School did not satisfy its burden in withholding these records pursuant to Exemption (c). Conclusion Accordingly, the School is ordered to provide Mr. Wood with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Wood