Drew DePatie v. North Reading, Town of - Public Schools (SPR 20221237)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2022 SPR22/1237 Michael A. Connelly Assistant Superintendent of Finance and Operations Records Access Officer North Reading School District 189 Park Street North Reading, MA 01864 Dear Mr. Connelly: I have received the petition of Drew DePatie appealing the response of the North Reading School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 27, 2022, Mr. DePatie requested “…all social justice goals and objectives for year 2021-2022 that are collected from individual teachers and staff…” Prior Appeal The requested records were the subject of a prior appeal. See SPR22/1049 Determination of the Supervisor of Records (May 17, 2022). On May 20, 2022, the School provided a further response. Unsatisfied with the School’s response, Mr. DePatie petitioned this office and this appeal, SPR22/1237, 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 town 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

Michael A. Connelly SPR22/1237 Page 2 June 7, 2022 The School’s May 20th response In its May 20th response, the School states it is withholding the requested records pursuant to Exemption (c). 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 info1mation 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). 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. In its May 20th response, the School states that the requested records are, “…part of the individual teacher’s personnel record, defined in Massachusetts General Laws c. 149, § 52C as ‘a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation or disciplinary action.’” The School further indicates, “…that the release of all personnel records requested could result in one or more scenarios that (1) would result in personal embarrassment to an individual of normal sensibilities given the highly personal process of educator evaluation and its focus on

Michael A. Connelly SPR22/1237 Page 3 June 7, 2022 continuous improvement.” The School states, “…the District does believe that a personnel evaluation does (2) ‘contain intimate details of a highly personal nature’; and the District does not believe (3) that ‘the same information is available from other sources.’” The School concludes that, “the District and the North Reading Education Association contend that the…personnel evaluation would be exempt from disclosure as ‘personnel information’ in the same way that the disciplinary report is exempt in the Wakefield case.” In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the School to redact responsive records, the School must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the School’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the School is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay.

Michael A. Connelly SPR22/1237 Page 4 June 7, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Drew DePatie