Olufunmilola Shelly v. Framingham, City of - Public Schools Department (SPR 20220773)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 13, 2022 SPR22/0773 Amy Kane Records Access Officer Schools Department City of Framingham 150 Concord Street Framingham, MA 01702 Dear Ms. Kane: I have received the petition of Olufunmilola Shelly appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 15, 2022, Ms. Shelly requested the following: - Any complaints filed against [a named individual] in 2020, 2021, or 2022. - Any emails staff to school department administration, or HR, on complaints about [the individual] in 2020, 2021, or 2022. - Any resignation letters when [the individual] was cited as the reason for leaving in 2020, 2021, or 2022. - Any performance reviews performed on [the individual] in 2020, 2021, or 2022. The City responded on March 29, 2022, denying the request and citing Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Unsatisfied with the City’s response, Ms. Shelly 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). 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

Amy Kane SPR22/0773 Page 2 April 13, 2022 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 her appeal petition, Ms. Shelly contends “that the exemption used is not relevant to the requested records.” The City’s March 28th Response In its March 28, 2022 response, the City cites Exemption (c) of the Public Records Law for withholding responsive records. 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). 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. 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). When analyzing a privacy claim, there is a balancing test which provides that where the

Amy Kane SPR22/0773 Page 3 April 13, 2022 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 City argues the following: Without confirming the existence of any of the documentation requested above, none of the information requested would be a public record, as each separate request would constitute a “personnel record” because the information contained therein would pertain to specific and identifiable employees and would be considered useful in making employment decisions regarding those employees. Further, any complaints, allegations, findings or responses would be embarrassing to a person of normal sensibilities and likely to cause damage to one or more employees’ reputations. The requested information (Complaints, emails regarding complaints against an employee, resignation letters, and performance reviews) are therefore, exempt from disclosure under the first clause of exemption (c) of G.L. c. 4, §7(26). The City 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. See PETA, 477 Mass. at 292 Additionally, the City must identify the specific records it intends to withhold. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the City is ordered to provide Ms. Shelly with a response to her 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: Olufunmilola Shelly