Colman Herman v. Boston, City of - Public Schools (SPR 20230933)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 23, 2023 SPR22/0933 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Colman Herman appealing the response of the Boston Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Prior Appeals On December 14, 2021, Mr. Herman requested copies of “the final reports that deal with EQT-1 issues … EQT-2 issues … EQT-4 issues … EQT-5 issues … EQT-7 issues … EQT-8 issues … final reports that deal with issues that were referred … final reports that deal with issues that were withdrawn.” See SPR21/3384 Determination of the Supervisor of Records (January 10, 2022) and SPR22/0393 Determination of the Supervisor of Records (March 4, 2023 and April 10, 2023). On November 25, 2021, Mr. Herman requested copies of “certain final reports from BPS Office of Equity, which is overseen by Assistant Superintendent …” On December 14, 2021, Mr. Herman modified his request for “… final reports for the [identified] case numbers … [and] [i]f the final reports do not contain the details of the cases, please provide … documents that do provide the details.” See SPR21/3252 Determination of the Supervisor of Records (December 24, 2021) and SPR22/0395 Determination of the Supervisor of Records (March 4, 2022 and April 10, 2023). On March 4, 2022, this office requested that the School provide this office with records responsive to these requests for in camera inspection. On March 20, 2023, the School provided the records for review. In my April 10th determination, based on the in camera review, I found that although some of the records may fall under Exemptions (a) and (c) of the Public Records Law, the School had not met its burden to withhold all the records in their entirety. The School provided a further response on 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

Shawn A. Williams, Esq. SPR22/0933 Page 2 May 23, 2023 May 5, 2023. Unsatisfied with the May 5th response, Mr. Herman petitioned this office and this appeal, SPR23/0933, 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. Attorney 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. The School’s May 5th Response In its May 5, 2023 response, the School cited Exemption (c) to withhold the requested records in their entirety. Current appeal In his appeal, Mr. Herman states, “[i]n the matters at hand no one’s privacy would be violated because any identifying information could simply be redacted. In that regard, I have repeatedly said that I have absolutely no interest in any information that would in any way identify any of the parties to the cases. With their refusal to release the responsive records, BPS leadership continues to make every effort to shield records of sexual misconduct, bullying, and other troubling equity behaviors at BPS from public scrutiny, thus depriving students, parents, and other BPS constituents with information to which they all are entitled.” 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).

Shawn A. Williams, Esq. SPR22/0933 Page 3 May 23, 2023 In its response, the School stated, “[a]fter a review of this finding and applicable case law, your request is denied as the records are entirely exempt from disclosure as ‘disciplinary documentation’ records pursuant to the personnel records clause of exemption (c) of the public records law. G. L. c. 4, § 7 (26) (c). As indicated below, requiring a records custodian to disclose ‘disciplinary documentation’ with redactions would reverse more than twenty years of precedent from the Massachusetts Supreme Judicial Court. While the applicable exemption was recently amended for internal affairs investigations of police officers, we do not believe this amendment intended to reverse the holding of the Supreme Judicial Court that permits the withholding of ‘disciplinary documentation’ without the need for redaction.” It is unclear how the records would relate to a “specifically named individual,” as required to be withheld under Exemption (c), if identifying information were to be redacted. G. L. c. 4, § 7(26)(c).The School must clarify whether segregable portions can be provided. 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). Conclusion Accordingly, the School is ordered to provide Mr. Herman 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. pre@sec.state.ma.us. Mr. Herman may appeal the substantive nature of the School's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman