Susan Fitzgerald v. Palmer, Town of - Public Schools (SPR 20221081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 20, 2022 SPR22/1081 Patricia Gardner Superintendent of Schools Palmer Public Schools 4107 Main Street Palmer, MA 01069 Dear Superintendent Gardner: I have received the petition of Susan Fitzgerald appealing the response of the Palmer Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 3, 2022, Ms. Fitzgerald requested copies of “…the complete report of the questioning of [named person] [and] the list of questions … with reasons behind each question, as well as [the] alleged answers … [and] … [identified person] baccalaureate degree major, graduate certificate, and field of discipline, as well as … state qualification and licensing criteria…” On April 28, 2022, Ms. Fitzgerald modified her request to include “no trespass notes from [a named individual] redacted” from September 2016 to present and “redacted settlements from [a named individual]” from September 2016 to present. Prior Appeals This request was the subject of prior appeals. See SPR22/0901 Determination of the Supervisor of Records (April 28, 2022); SPR22/1014 Determination of the Supervisor of Records (May 9, 2022). The School provided a response on May 5, 2022. Unsatisfied with the School’s response, this appeal 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

Patricia Gardner SPR22/1081 Page 2 May 20, 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. 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 School’s May 5th Response In its May 5, 2022 response, the School stated that: The licensure/qualification information has already been provided to Ms. Fitzgerald. The discussions with the counselor were verbal and notes were not taken. Therefore, my client does not have any responsive records. Lastly, in regard to Ms. Fitzgerald’s request for settlement agreements involving employees of the Palmer Public Schools, my client has not provided the documents due to the provisions of M.G.L. c. 4, s. 7(26th)(c). More specifically, said settlements are contained in the personnel files of said employees and related to confidential employment matters the disclosure of which would result in an unwarranted invasion of personal privacy. 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). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of

Patricia Gardner SPR22/1081 Page 3 May 20, 2022 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. 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. Based on the School’s May 5th response, it is unclear how the personnel records contain intimate details of a highly personal nature or 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. Settlement Agreements In the Globe decision, the court listed the following information as properly subject to redaction within a settlement agreement under Exemption (c): (1) promotion of grade; (2) compensation at a different salary grade; (3) adjustment in compensation; (4) waiver of bumping rights and/or recall rights; (5) entitlement to remain on administrative leave; (6) requirement to tender a letter of resignation; (7) demand of voluntary resignation; (8) reinstatement; (9) layoff; (10) agreement by an agency to remove a letter from a personnel file; (11) agreement by an agency concerning the providing of references and their contents; (12) the requirement that an employee meet with a supervisor to review progress of assigned matters; (13) adjustment of an agency's records to reflect an employee's status; (14) adjustment or continuation of employee benefits, such as unemployment assistance, COBRA, and retirement benefits, and agreement regarding back wages; (15) recitations concerning grievances, including agreement to withdraw a grievance and acknowledgment by an employee of the absence of a pending grievance; (16) a statement of resolution of all claims

Patricia Gardner SPR22/1081 Page 4 May 20, 2022 concerning termination of employment and prior disciplinary actions, (17) agreement to turn in agency property, (18) global resolution involving the entering of a nolle prosequi by a prosecutorial official; (19) language affirming an agency's legitimate concern for discipline and an employee's receipt of a memorandum of verbal discipline; and (20) completion by an employer of harassment training. Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11- 01184-A (June 14, 2013) at 34-35. It is unclear whether the responsive settlements could be redacted and released in accordance with the Globe case. Interview Notes In her appeal, Ms. Fitzgerald questions why there were no notes taken at the interview. In its May 5, 2022 response, the School confirms that there are no responsive records concerning the interview. Under the Public Records Law, the School is not required to create records in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y. Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). No Trespass Orders Additionally, Ms. Fitzgerald contends that the no trespass orders are public records. With regard to the no trespass orders, the School’s representative provided a response on May 11, 2022 which stated that, I provided Ms. Fitzgerald with the information that four [no trespass orders] were given during my tenure. After careful review, there are five—one of which was requested by the Direct of Student Services in my absence. The police department has the final authority on [no trespass orders.] They would have official copies. However, in an email dated April 13, 2022, the Palmer Police Department stated: “You need to request the [t]respass [n]otices from the school directly.” In light of these responses, the School must clarify whether it has these responsive records. Order Accordingly, the School is ordered to provide Ms. Fitzgerald with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10)

Patricia Gardner SPR22/1081 Page 5 May 20, 2022 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: Susan Fitzgerald