Alison Freeman v. Mendon-Upton Regional School District (SPR 20242246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2024 SPR24/2246 Cheryl L. Kirkpatrick, Ed.D. Assistant Superintendent Mendon-Upton Regional School District 150 North Avenue Mendon, MA 01756 Dear Dr. Kirkpatrick: I have received the petition of Dr. Alison Freeman appealing the response of the Mendon-Upton Regional School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 15, 2024, Dr. Freeman requested, “... a copy of the notes taken by [an identified individual] at our meeting on July 12, 2024, pertaining to the multiple privacy violations against my children.” The District responded on July 26, 2024. Unsatisfied with the District’s response, Dr. Freeman petitioned this office and this appeal, SPR24/2246, 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

Cheryl L. Kirkpatrick, Ed.D. SPR24/2246 Page 2 August 22, 2024 The District’s July 26th response In its July 26, 2024 response, the District withheld the requested records pursuant to Exemption (e) of the Public Records Law. Current appeal In her appeal, Dr. Freeman states, There is a pattern of behavior with this school district that has not been addressed – they are unable to maintain student privacy, and try to misrepresent me to pass blame for their negligence. I need to review the notes taken by Dr. Kirkpatrick to ensure this doesn’t happen again. The refusal of Dr. Kirkpatrick to provide a copy of her notes tells me that she is hiding something. Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the Commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and not part of a governmental file. In its July 26th response, the District asserted, “[o]n July 15, 2024 prior to your request, I provided you with a summary of our meeting, hoping that would be sufficient to address your request. Pursuant to 603 CMR 23.04, the records you requested do not constitute student records. In addition, the requested records are subject to exemption as public records under MA General

Cheryl L. Kirkpatrick, Ed.D. SPR24/2246 Page 3 August 22, 2024 Law (G. L. c. 4, § 7(26)). Specifically, they are subject to Exemption E, since the notes I took were personal reflections on work-related activities and notes created by me, and were not shared with anyone.” In a telephone conversation between the District and an attorney at the Public Records Division, the District confirmed that the notes were personal to the individual, not shared with anyone and were kept separate from any files. Conclusion Where the District has confirmed that the notes were personal to the individual, not shared with anyone and were kept separate from any files, I find the District may permissibly withhold the requested notes under Exemption (e) of the Public Records Law. Accordingly, I will now consider this administrative appeal closed. Dr. Freeman is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Dr. Alison Freeman