Neal McNamara v. Wayland, Town of - Public Schools (SPR 20230625)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 14, 2023 SPR23/0625 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.” Previous Appeal This request was the subject of a previous appeal. See SPR23/0430 Determination of the Supervisor of Records (March 17, 2023). In my March 17th determination, I ordered the School to clarify its claims under Exemption (c) of the Public Records Law, and to clarify whether it possesses additional responsive records. Subsequently, the School responded on March 31, 2023. Unsatisfied with the School’s response, Mr. McNamara appealed, and this case was opened as a result. While this appeal was pending, in an email to this office and Mr. McNamara on April 7, 2023, the School provided a supplemental response. 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). 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. SPR23/0625 Page 2 Aril 14, 2023 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 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 in-camera review of the withheld records here to determine if exemption C is warranted.” In an email subsequent to the opening of this appeal, Mr. McNamara also contends that “the records being wrongfully withheld by the district are not a personnel matter; the records are related to the elected school committee’s firing of a superintendent (the highest-paid town employee, and one who oversees hundreds of public school students) with no explanation.” The School’s Responses In its March 31, 2023 response, the School states that “there is one email in addition to the paid administrative leave letter that is responsive to [Mr. McNamara’s] request” and states that it is withholding both records pursuant to Exemption (c) of the Public Records Law. 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.

Parry Graham, Ed.D. SPR23/0625 Page 3 Aril 14, 2023 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. In regard to the paid administrative leave letter, under Exemption (c), the School argues that it “falls into the core category of the employee documents.” Further, the School argues the following: Correspondence about placing an employee on paid administrative leave is like the disciplinary report in Wakefield Teacher’s Ass’n. Id. at 794. A paid administrative leave letter is issued when a district is investigating conduct. It is a letter changing an employee’s status in the sense that they will not be physically coming to work for the duration of the leave. Like the disciplinary report in Wakefield Teacher’s Ass’n., correspondence placing an employee on paid administrative leave is specific to one individual. Id. at 794. Therefore this correspondence is “personnel” information as that term is used in the first category of the exemption. G. L. c. 4, s. 7, Twenty-sixth (c). Id. at 797. Since it focuses on one individual, it is absolutely exempt from disclosure under the plain language of G. L. c. 4, s. 7, Twenty-sixth (c) as a core personnel document. In regard to the one responsive email, the School states that “it fits into a balancing test,” and argues the following: The disclosure of the email could lead to embarrassment to an employee as it discusses the leave between the individual and School Committee. The decision to place an employee on leave are of a highly personal nature since it is specific to an individual. The public’s right to know does not counterbalance the individual’s right to privacy for allegations that have not yet been proven. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claims made by the School to withhold the 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.

Parry Graham, Ed.D. SPR23/0625 Page 4 Aril 14, 2023 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, 10A. 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. Sincerely, Manza Arthur Supervisor of Records cc: Neal McNamara Felicia S. Vasudevan, Esq.