Patrick Carty v. Barnstable, Town of - Public Schools (SPR 20230199)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 15, 2023 SPR23/0199 Sara Ahern, Ed.D. Superintendent of Schools Barnstable Public Schools 230 South Street Hyannis, MA 02601 Dear Dr. Ahern: I have received the petition of Patrick Carty and Lauren Walsh appealing the response of the Barnstable 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 October 18, 2022, Mr. Carty and Ms. Walsh requested: A two-page disciplinary letter dated March 6th, 2022 from [an identified individual] to [another identified individual]. This letter is in reference to an investigation in which [an identified individual] allegedly physically assaulted at least one student. On October 31, 2022, the School provided a response. Unsatisfied with the response, Mr. Carty and Ms. Walsh petitioned this office and this appeal, SPR23/0199, 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). 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(d)(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 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

Sara Ahern, Ed.D. SPR23/0199 Page 2 February 15, 2023 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). 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 October 31st Response In its October 31, 2022 response, the School asserts that it is withholding the responsive record under Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26). 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. Sch. Comm., 431 Mass. 792, 798 (2000). 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. 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

Sara Ahern, Ed.D. SPR23/0199 Page 3 February 15, 2023 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 response, the School argues: Any responsive document in the possession, custody, or control of the District is being withheld because they contain personnel and other private information as delineated in [Exemption (c)]…. Disclosure of information related to employee discipline does not pass the balancing test of the public’s right to know versus relevant privacy interests. The position that all teacher disciplinary matters should be disclosed because teachers are public employees “placed in an inherent position of public trust” was “a policy consideration rejected by the Legislature.” Wakefield Teachers Association, 431 Mass. at 802 n. 18. Here, documents regarding the discipline administrated to a teacher and investigatory information, is information that is highly personal in nature and would result in personal embarrassment to an individual of normal sensibilities. Consequently, to the extent your request seeks documents containing personnel and other private information—information related to the administration of discipline and the conduct related to the investigation that led to the any [sic] discipline—have been withheld pursuant to G. L. c. 4, § 7(26)(c). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass at 62. Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such

Sara Ahern, Ed.D. SPR23/0199 Page 4 February 15, 2023 disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. In its response, the School asserts, “[a]ny responsive document is also being withheld under Exemption (f)….” In camera inspection In order to facilitate a determination as to the applicability of the School’s claims under Exemption (c) and Exemption (f) to withhold the responsive record from disclosure, the School must provide this office with an un-redacted copy of the responsive record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. 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. Massachusetts 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.

Sara Ahern, Ed.D. SPR23/0199 Page 5 February 15, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Patrick Carty Lauren Walsh