Naomi Martin v. Quincy, City of - Public Schools (SPR 20220727)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 11, 2022 SPR22/0727 Allison Cox Director of Human Resources and Educator Development Quincy Public Schools 34 Coddington Street Quincy, MA 02169 Dear Director Cox: I have received the petition of Naomi Martin, of the Boston Globe, appealing the response of the Quincy Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 4, 2022, Ms. Martin requested: [1] [A]ny and all contracts or invoices with outside vendors or private parties for legal, investigative or human resources work from Jan. 1, 2007 through Jan. 30, 2022 pertaining to inquiries related to allegations of abuse, bullying, harassment, discrimination or other misbehavior or misconduct by students, staff members, and/or coaches[.] [2] [A]ny and all related records to such services provided from Jan. 1, 2007 through Jan. 30, 2022. This includes, but is not limited to: [a] any prepared reports, investigations or reviews [b] any preparatory materials or files, including internal and external communications or electronic correspondence in the possession of the district, school board or school officials [c] service orders, memoranda of agreement/understanding, or other records related to retainment, cost, and scope of work. [d] any emails, statements, news releases, or other communications to families, educators, the media, or the public about the outside vendors’ work[.] Subsequently, on February 24, 2022, Ms. Martin made a follow-up request for the following: [1] . . . a copy of the final investigative report by [a named individual] in the matter related to the records you sent, as requested. 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

Director Allison Cox SPR22/0727 Page 2 April 11, 2022 [2] . . . records showing how much the district paid for that work by Visions. I would also like to clarify that if there are any other outside vendors that have done similar assessments related to bullying, harassment, discrimination, etc., we believe that would fall under this request too. [3] . . . the [named individual’s] work does not show how much the district paid her, only her hourly rate of $250 per hour. Is there an invoice or another record type that would show how much total she was paid for her work? Previous appeal This request was the subject of a previous appeal. See SPR22/0680 Determination of the Supervisor of Records (March 29, 2022). SPR22/0680 was closed after the School provided a supplemental response on March 29, 2022. Unsatisfied with the School’s response, Ms. Martin petitioned this office and this appeal, SPR22/0727, was opened as a result. It appears this appeal pertains to Item 1 of the February 24th request only. 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. 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. The Schools March 29th response In its March 29, 2022 response, the School claims that the records are exempt under Exemption (c) of the Public Records Law. The School asserts that “[a]ny records responsive to [Item 1] of your request would contain personnel information regarding a school employee. As a result, this information constitutes core categories of records useful in making an employment decision pertaining to an

Director Allison Cox SPR22/0727 Page 3 April 11, 2022 identifiable school employee.” The School cites Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). The School further posits that “. . . any responsive records would contain personnel information regarding an identifiable individual. This information, if disclosed, would result in personal embarrassment to a reasonable person. Second, these records would contain intimate details of a highly personal nature, as they would discuss personnel information concerning a specific, identifiable school employee. Third, any personnel information would be communicated through confidential internal [School] correspondence to the specific school employee, which correspondence is not generally accessible to the public. In considering these three factors, [the School] has determined that the public’s interest in this information does not substantially outweigh the identifiable individual’s privacy interest. . . .” 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). 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). 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. 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

Director Allison Cox SPR22/0727 Page 4 April 11, 2022 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. Based on the School’s response, it is unclear how the investigative reports constitute one of the core categories of personnel information, such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under Exemption (c). It is additionally uncertain how the reports, in their entirety, contain intimate details of a highly personal nature. The School must explain whether segregable portions can be provided. 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). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the School is ordered to provide Ms. Martin with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, Rebecca S. Murray Supervisor of Records cc: Naomi Martin Sarah C. Spatafore, Esq.