Kathleen Grant v. Andover, Town of - Public Schools (SPR 20241386)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 21, 2024 SPR24/1386 Nicole L. Kieser Records Access Officer Andover Public Schools 30 Whittier Court Andover, MA 01810 Dear Ms. Kieser: I have received the petition of Kathleen Grant appealing the response of the Andover 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 April 24, 2024, Ms. Grant requested “copies of each individual electronic payment made to [a named individual] in FY2023 and FY2024 and what they are related to with supportive documentation.” The School responded on May 7, 2024, providing information on the individual’s compensation, and claiming that responsive records are exempt from disclosure under Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Unsatisfied with the School’s response, Ms. Grant 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. 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. 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

Nicole L. Kieser SPR24/1386 Page 2 May 21, 2024 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 May 7th Response In its May 7, 2024 response, the School provides information on the individual’s compensation, and cites Exemption (c) of the Public Records Law for withholding responsive records. 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). 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). 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

Nicole L. Kieser SPR24/1386 Page 3 May 21, 2024 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 May 7th response, the School lists the individual’s compensation for FY 23 and FY 24, and argues the following for withholding records under Exemption (c): [T]o the extent more finite and personal records contained in [the individual]’s personnel file are sought with respect to compensation, those documents would be withheld pursuant to exemption “c” as personnel file documents and information. Furthermore, other documents not contained within [the individual]’s personnel file such as paystubs, W-2s, documents, data on health insurance payments, and retirement contributions statements would also be withheld under exemption “c” for containing details of a private and personal nature reflecting individual decisions of how [he] managed his personal finance, medical care, and family within the total compensation and benefits provided by Andover. For FY24, [the individual]’s total compensation was $0.00. As with FY23, personnel file documents and documents of a personal and private nature would similarly be withheld to the extent sought. Such documents do not provide further information on monies paid to [him], merely how he elected to allocate compensation for tax, health, retirement, and other personal purposes. 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. Further, although portions of the responsive records may fall within Exemption (c), it is unclear how the records can be withheld in their entirety. Particularly, it is uncertain how non- exempt data is inextricably intertwined with exempt data such that the records cannot be segregated. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, 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 Ms. Grant with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Nicole L. Kieser SPR24/1386 Page 4 May 21, 2024 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Kathleen Grant