Tammy Sweeney v. Woburn, City of - Public Schools (SPR 20222345)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 1, 2022 SPR22/2345 Matthew Crowley Superintendent of Schools City of Woburn Public Schools 55 Locust Street Woburn, MA 01801 Dear Dr. Crowley: I have received the petition of Tammy Sweeney appealing the response of the Woburn Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 14, 2022, Ms. Sweeney requested the following records: [1] The amount of teachers in [Woburn Public Schools] (School) that have been approved and given Sick Bank Leave days; [2] The genders of the teachers in the [School] that have been approved and given Sick Bank Leave days; [3] The reason(s) for which of the teachers in [the School] that have been approved and given Sick Bank Leave days; [4] The total number of days in the [School] teachers’ [S]ick [B]ank account; and, [5] Any information and data related to [the School] teacher Sick Bank leave. Prior appeal This request was the subject of a previous appeal. See SPR22/2210 Determination of the Supervisor of Records (October 12, 2022). SPR22/2210 was closed after the office learned that the School had provided a further response on October 11, 2022. Unsatisfied with the School’s response, Ms. Sweeney petitioned this office and the current appeal was opened. 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 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

Dr. Matthew Crowley SPR22/2345 Page 2 November 1, 2022 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) (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…”); 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). Purpose of request; identity of requestor Ms. Sweeney is advised, that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Sweeney’s purpose in making the request has no bearing on the public status of any existing responsive records. The School’s October 11th response In its October 11, 2022 response, the School provided information responsive to Ms. Sweeney’s Request Numbers 4 and 5. As it previously responded in July 2022, the School’s October 11th response indicates that it has no documents regarding Ms. Sweeney’s request for the number of teachers that have been granted sick bank days, and information on the gender of those individuals. Current appeal In Ms. Sweeney’s appeal petition, she explains that she was not provided any information regarding the Request Numbers 1, 2 and 3. In addition, Ms. Sweeney asserts, “…the form letters the Sick Leave Committee sends to people granting or denying leave…do not contain any confidential or private medical information at all. There is no privacy right in knowing which public employees sought a sick leave bank benefit. Notably, the letters are widely disseminated to a wide range of public employees including but not limited to the [Assistant] [S]uperintendent, [S]upervisor of payroll, [U]nion [P]resident, [S]pecial [E]ducation [T]eacher, and [S]chool [N]urse.” Ms. Sweeney is advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with

Dr. Matthew Crowley SPR22/2345 Page 3 November 1, 2022 requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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 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

Dr. Matthew Crowley SPR22/2345 Page 4 November 1, 2022 in a law-abiding and efficient manner. Id. at 292. The School’s October 11th response asserts, “[w]ith respect to your request for documents regarding the reasons for granting sick bank days; the information you seek is highly personal and private and would be withheld under [E]xemption (c) of the [Public Records Law]. Furthermore, [the School] believe[s] that redacting identifying information on any of the letters to individuals granting time via the sick bank would not be sufficient to protect their identity and confidential medical information.” Based on the School’s response, it is unclear how the records contain intimate details of highly personal nature. It is additionally uncertain how the School may withhold the records, in their entirety, from disclosure. 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). The School claimed an exemption without any specificity in withholding the records under Exemption (c). Consequently, I find the School did not meet its burden of specificity in claiming Exemption (c) of the Public Records Law to withhold the responsive records. Conclusion Accordingly, the School is ordered to provide Ms. Sweeney with a response to her request 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Tammy Sweeney