Frank Wood v. Tewksbury, Town of - Public Schools (SPR 20220019)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 18, 2022 SPR22/0019 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. Previous Appeal This request was the subject of a previous appeal. See SPR21/3187 Supervisor of Records Determination (December 20, 2021). In my December 20th determination, I ordered the School to provide additional information concerning its claims to withhold responsive records pursuant to Exemption (c) of the Public Records Law. Subsequently, the School responded on January 4, 2022, providing numerous records in redacted form, and withholding others. 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 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 SPR22/0019 Page 2 January 18, 2022 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 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 “there is no reason dates should be redacted - especially in email communications. This is over redacted. Work experience is not protected.” Additionally, he reiterates that he “request[s] the cover letter, letters of recommendation, and the emails excluded in their entirety,” and contends that “these documents are public and . . . should not be excluded.” The School’s January 4th Response In its January 4, 2022 response, the School states that it has redacted responsive records pursuant to Exemptions (c) and (o) of the Public Records Law, and withheld others in their entirety under Exemption (c). See G. L. c. 4, § 7(26)(c), (o). 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

Christopher Malone SPR22/0019 Page 3 January 18, 2022 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 Property Dep’t., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. 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: In considering those factors and balancing the privacy rights of the individual with the rights of the public to ascertain that the individual is able to carry out her duties in an efficient and law-abiding manner, the District is producing information sufficient to demonstrate that the named individual is qualified for the position for which she was hired, as well as information that is available to the public from other sources. An individual of ordinary sensibilities would not expect documents solely related to the application process, and which become part of a personnel file, to become public. Those documents contain personal information, including intimate details of a highly personal nature and they do not provide the public with information as to the individual's ability to carry out the duties of a public employee. School staff members also have a reasonable and long-standing expectation of privacy in their personnel records. Moreover, the individual whose records you seek has not consented to the disclosure of her personal information. Where the School has redacted information such as dates of emails, dates of attendance at colleges and universities, degrees conferred, dates of previous employment, and previous job descriptions and responsibilities, it is unclear how such information constitutes intimate details of a highly personal nature that would result in personal embarrassment. Further, it is unclear how any privacy interest in this information is outweighed by the significant public interest in knowing the employment qualifications of a public official. The School must clarify these matters.

Christopher Malone SPR22/0019 Page 4 January 18, 2022 Additionally, under Exemption (c), concerning the records withheld in their entirety, the School argues: The following records have been withheld in their entirety . . . as it was not possible to segregate and produce non-exempt portions of the record: • Cover letter accompanying application. • Two letters of recommendation. • Correspondence between District employees and the named individual related to a job offer, negotiations on terms, and reference checks. An individual of normal sensibilities would not expect these documents to be made public and consider their disclosure to result in personal embarrassment. They also contain intimate details of a personal nature. By their nature, cover letters, letters of recommendation, and references are subjective statements of personal opinion. Further, there is no information that can be gleaned from these documents relative to the employee’s ability to carry out her duties that is not available in the resume or other documents produced. Thus, the employee’s rights to privacy outweighs the public interest in disclosure. Based on the School’s response, it is unclear how any privacy interest in the records described above outweighs the significant public interest in knowing whether an official is qualified for their job, and in knowing whether the hiring entity is carrying out its duties in an efficient and law-abiding manner. The School must clarify this. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o). Under Exemption (o), the School explains that it “has redacted personal information such as the individual’s home address, email address, phone number, and social security number. The address, social security number, and phone number were also specifically excluded from the

Christopher Malone SPR22/0019 Page 5 January 18, 2022 request.” Where this information is the type contemplated under Exemption (o), and is not responsive to the request, I find the School has met its burden to redact this information. 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, /'JA . ... ~-~· 0. ~ Rebecca S. Murray Supervisor of Records cc: Frank Wood