Neal McNamara v. Wayland, Town of - Public Schools (SPR 20230430)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2023 SPR23/0430 Parry Graham, Ed.D. Assistant Superintendent Wayland Public Schools 41 Cochituate Road Wayland, MA 01778 Dear Dr. Graham: I have received the petition of Neal McNamara appealing the response of the Wayland Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 14, 2023, Mr. McNamara requested, among other items, “[a]ll correspondence between the school committee and [Superintendent] about him being placed on a leave of absence on Feb. 8.” The School responded on March 1, 2023, providing numerous records responsive to other portions of Mr. McNamara’s request, and stating that it was withholding records responsive to this part of the request under Exemption (c). Unsatisfied with the School’s response, Mr. McNamara appealed, and this case 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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 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

Parry Graham, Ed.D. SPR23/0430 Page 2 March 17, 2023 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. Current Appeal In his appeal petition, Mr. McNamara requests “an appeal of the denial of records and an in camera review, specifically the portion ‘[a]ll correspondence between the school committee and [Superintendent] about him being placed on a leave of absence on Feb. 8.’” Mr. McNamara contends that the School “has broadly refused to release the records citing exemption C, but it’s likely impossible for every record to fall under that exemption.” The School’s March 1st Response In its March 1, 2023 response, the School cites Exemption (c) of the Public Records Law for withholding records responsive to the above cited portion of Mr. McNamara’s request. See G. L. c. 4, § 7(26)(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 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). 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.

Parry Graham, Ed.D. SPR23/0430 Page 3 March 17, 2023 As to the request for “all correspondence between the school committee and [Superintendent] about him being placed on a leave of absence,” the School states that “any potentially responsive documents are exempt from disclosure in accordance with the exemption set forth at G.L. c. 4, § 7(26)(c).” Specifically, the School argues that “a paid administrative leave letter is a core personnel document and relates to an employee’s status, and therefore is confidential. As a result, [the School] will not provide a copy of any such letter.” Based on the School’s response, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the School did not provide 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. PETA, 477 Mass. at 292. The School must clarify these matters. Additionally, it is unclear from the School’s response whether the School possesses any additional records responsive to this portion of the request, other than the administrative leave letter described above. The School must identify the records, categories of records, or portions of records it intends to withhold under Exemption (c). See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the School is ordered to provide Mr. McNamara with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Neal McNamara