Peter Buchthal v. Lincoln, Town of -- Public Schools (SPR 20230007)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 18, 2023 SPR23/0007 Dr. Rebecca E. McFall Superintendent of School Lincoln Public Schools 6 Ballfield Road Lincoln, MA 01773 Dear Dr. McFall: I have received the petition of Peter Buchthal appealing the responses of the Lincoln Public Schools (School) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 18, 2022, Mr. Buchthal requested the School Committee “explain in detail the communication and meeting details of what happened from October 30, 2022 onwards till your announcement on November 17, 2022 of the selection of the members of the Superintendent Search Committee by the School Committee.” On December 5, 2022, the School responded. On December 6, 2022, Mr. Buchthal requested “all ‘communications’ from or to School Committee members relating to the Screening Committee between October 30th and November 17th, 2022,” including “the emails, texts, and notes of the School Committee members.” On December 16, 2022, the School responded. Unsatisfied with the School’s responses, Mr. Buchthal petitioned this office and this appeal, SPR23/0007, was opened as a result. While this appeal was pending, the School submitted a supplemental response on January 6, 2023. 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 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. Rebecca E. McFall SPR23/0007 Page 2 January 18, 2023 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 December 5th and December 16th Responses In its December 5, 2022 response, the School states: I conducted a search of available documentation relevant to your request. As a result, I am enclosing the DRAFT minutes for the Lincoln School Committee meetings held on November 3, 2022 and November 11, 2017 [sic]. These documents represent all records related to the development of the Superintendent Search Screening Committee. In its December 16, 2022 response, the School asserts: Please be advised that correspondence related to applicants who were not chosen as finalists is protected by [Exemption (c)], which generally 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.” …. Additionally, please be advised that notes maintained by one member of the School Committee, which were personal and not shared, are protected by [Exemption (e)], which generally applies to “notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit.” The School’s January 6th Supplemental Response In its January 6, 2023 response, the School states: With respect to Mr. Buchthal’s request for additional detailed communication from other School Committee Members, I provided all documents that exists between October 30th and November 17th. Prior to that timeframe, the School Committee appointed member . . . to review applications and submit a proposed list of Superintendent Search Subcommittee members to the School Committee. This request for applications went out to the community on October 13, 2022. What little communication did involve other School Committee Members was provided. Nor are there additional emails or attachments that have not been properly provided. The referenced “attachment” provided on November 17, 2022, was not part of a larger email communication, but was an electronically shared

Dr. Rebecca E. McFall SPR23/0007 Page 3 January 18, 2023 Google Document which was provided to Mr. Buchthal. Additionally, references to any alleged Open Meeting Law Violations are, respectfully, not within the purview of the Supervisor of Records. Finally, in response to Mr. Buchthal’s request to disallow the two exemptions, the personal notes of Committee Member . . . are exempt under M.G.L. c. 4, § 7(26)(e), as they were personal to her, were not shared with anyone, nor “maintained as part of the files” of the School Committee. Similarly, correspondence related to applicants who were initially screened by [a named individual] but not chosen for the slate she submitted to the School Committee for approval is exempt under [Exemption (c)]. The Supervisor of Records has previously determined that an applicant who does not make it past the stage of a preliminary screening “maintains an undiminished privacy interest in his identity, thus certain information may be withheld pursuant to Exemption (c).” SPR16/1142. See Gerstein v. Superintendent Search Screening Comm., 405 Mass. 465, 474 (1989) (“there are substantial reasons for protecting the identity of individuals who were candidates only early in the process”). 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., 391Mass. 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. 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. Sch. 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 Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013).

Dr. Rebecca E. McFall SPR23/0007 Page 4 January 18, 2023 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. 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). Although the School states it may withhold the responsive records under Exemption (c), the School has not sufficiently explained its reasoning. It is unclear how all the records contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it is not clear from the School’s response, whether this information is available from other sources. The School must also clarify whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); 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). Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other

Dr. Rebecca E. McFall SPR23/0007 Page 5 January 18, 2023 employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. Where the School stated that the named individual’s notes are personal to her, were not shared with anyone, and were not maintained as a part of a governmental file, I find the School has met its burden in withholding the notes pursuant to Exemption (e). Further, Mr. Buchthal states in his email correspondence dated January 6, 2023, “[an identified individual] only provided communications from 3 of the 15 members selected. How did the other 12 people arrive on the list?” Based on Mr. Buchthal’s appeal, it is unclear if the School possesses additional records responsive to the request. The duty to comply with 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). To the extent that additional records exist, I find the School must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the School is ordered to provide Mr. Buchthal 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, Manza Arthur Supervisor of Records cc: Peter Buchthal