Mark A. Hickernell, Esq. v. Wayland, Town of - Public Schools (SPR 20220345)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 16, 2022 SPR22/0345 Parry Graham, Ed.D. Assistant Superintendent of Schools Wayland Public Schools 41 Cochituate Road Wayland, MA 01778 Dear Assistant Superintendent Graham: I have received the petition of Attorney Mark Hickernell filed on behalf of Jessica Villatoro appealing the response of the Wayland Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 19, 2022, Ms. Villatoro requested a certain letter and any related communications. The School provided a response on February 2, 2022. Unsatisfied with the School’s response, Attorney Hickernell petitioned this office and this appeal, SPR22/0345, 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. 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. 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

Parry Graham, Ed.D. SPR22/0345 Page 2 February 16, 2022 The School’s February 2nd Response On February 2, 2022, the School withheld one responsive record pursuant to Exemption (c) of the Public Records Law. 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. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney 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. Current Appeal On February 2, 2022, the School stated:

Parry Graham, Ed.D. SPR22/0345 Page 3 February 16, 2022 The [School] has identified one record in its possession which is responsive to Section 1 of your request. However, that record is exempt from disclosure under the Public Records Law. The basis for the withholding of this record is Exemption (c) to the Public Records Law, which permits the withholding of [personnel files or information]… The Supreme Judicial Court has held that "[w]hile the precise contours of the legislative term ‘personnel [file] or information’ may require case- by-case articulation, it includes, at a minimum, employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee. These constitute the core categories of personnel information that are 'useful in making employment decisions regarding an employee."' Wakefield Teachers Ass'n v. School Comm. of Wakefield, 431 Mass. 792, 798 (2000). The record which is responsive to your request falls under this exemption, as it contains extensive discussion of multiple specifically named District employees, focusing on complaints and comments regarding their work performance. On February 11, 2022, Attorney Hickernell stated: The letter in question is not part of any individual’s personnel or medical file, and its disclosure would not constitute an unwarranted invasion of personal privacy to any individual. Rather, the document was sent by a member of the public (allegedly, a Wayland Public Schools teacher) and discussed in open session. Based on the School’s response, it is unclear how the letter contains intimate details of a highly personal nature and how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, 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. As a result, I find that the School did not satisfy its burden in withholding this record pursuant to Exemption (c). Conclusion Accordingly, the School is ordered to provide Attorney Hickernell 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.

Parry Graham, Ed.D. SPR22/0345 Page 4 February 16, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Attorney Mark Hickernell