Coree Dovev v. Marblehead, Town of - Public Schools (SPR 20242186)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2024 SPR24/2186 Lisa Dimier Records Access Officer Marblehead Public Schools Administration Building 9 Widger Road Marblehead, MA 01945 Dear Ms. Dimier: I have received the petition of Coree Dovev appealing the response of the Marblehead 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 July 17, 2024, Mr. Dovev requested a copy of a “12 page complaint letter against [an identified individual] from [a named School employee].” The School responded on July 31, 2024. Unsatisfied with the School’s response, Mr. Dovev petitioned this office and this appeal, SPR24/2186, was opened as a result. Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Dovev’s interest in obtaining the requested information shall have no bearing on the public nature of the record. 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, § 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

Lisa Dimier SPR24/2186 Page 2 August 14, 2024 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. 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 July 31st Response In its July 31, 2024 response, the School cited Exemption (c) of the Public Records Law to withhold the requested record in its entirety. Current Appeal In his appeal petition, Mr. Dovev states, “I am appealing the denial of this records request as the records requested pertain to me, and my employment. The records that I am requesting were also sent to the Marblehead School Committee and the Marblehead Education Association, making them public records.” 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. 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,

Lisa Dimier SPR24/2186 Page 3 August 14, 2024 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. School 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). 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. The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). In its July 31, 2024 response, under Exemption (c), the School states: While the District possesses documents responsive to your request and the requested documents constitute public records, the requested documents necessarily are exempt from disclosure pursuant to G.L. c. 4, § 7(26)(c) (“Exemption (c)”). Exemption (c) exempts information related to a specifically named individual which would constitute an unwarranted invasion of personal privacy if disclosed. Massachusetts courts have held that Exemption (c) exempts from disclosure certain personnel information, including “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). Here, a complaint letter against a specifically named individual falls squarely within Exemption (c) and, therefore, is exempt from disclosure in its entirety. Moreover, the seriousness of an invasion of privacy posed by disclosure of the requested records substantially outweighs any public interest in the requested records. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). Here, a specific internal personnel

Lisa Dimier SPR24/2186 Page 4 August 14, 2024 complaint letter, concerning a named individual, would be a significant invasion of privacy if disclosed. See id. at 292 (listing the following factors in applying Exemption (c): (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). Consequently, the requested records are exempt from disclosure. The School’s response did not contain the specificity required in a denial of access to public records under Exemption (c). See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Based on the School’s response, it is unclear how the responsive record constitutes one of the core categories of personnel information useful in making employment decisions regarding an employee. It is also unclear how disclosure of the record would result in personal embarrassment to an individual of normal sensibilities, how the information constitutes an intimate detail of a highly personal nature, and whether any of the requested information is available from other sources. PETA, 477 Mass. at 292. Further, the School did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining this information outweighs the seriousness of any invasion of privacy. It is additionally uncertain how the record can be withheld in its entirety. 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). The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Mr. Dovev 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: Coree Dovev