Michael W. Donahue v. Georgetown, Town of - Public Schools (SPR 20243197)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 10, 2024 SPR24/3197 Margo Ferrick Superintendent of Schools Georgetown Public Schools 51 North Street Georgetown, MA 01833 Dear Superintendent Ferrick: I have received the petition of Michael Donahue appealing the response of the Georgetown Public Schools (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 11, 2024, Mr. Donahue requested the following: [1.] Georgetown School District employee payroll identified by employee for the period September 1, 2023 to the present [2.] Georgetown School District employee attendance records identified by employee for the period September 1, 2022 to the present[.] Prior Appeal This request was the subject of a prior appeal. See SPR24/2982 Determination of the Supervisor of Records (November 14, 2024). In my November 14th determination, I found that the School’s response did not contain the specificity required in a denial of access to public records. The School provided a response on November 20, 2024. Unsatisfied with the School’s response, Mr. Donahue petitioned this office and this appeal, SPR24/3197, 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, 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

Superintendent Margo Ferrick SPR24/3197 Page 2 December 10, 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. 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. The School’s November 20th Response In its November 20, 2024 response, the School cited Exemption (c) of the Public Records Law to withhold records responsive to Item 2 of the request. The School previously provided records responsive to Item 1. Current Appeal In his appeal petition, Mr. Donahue states, “this amended response contains no specificity of how the requested data is exempt.… The public is entitled to public employee attendance records as recorded on official, supervisor approved payroll documents. The public is entitled to know if the District is complying with its own Employee Attendance Policy and if employees are complying with the terms of their employment contracts.” 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). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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.

Superintendent Margo Ferrick SPR24/3197 Page 3 December 10, 2024 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). 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). 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. Under Exemption (c), the School stated the following: The protection of employee absences is the utmost priority of the Office of Human Resources. Such a request invades each employee’s privacy and medical information. The long term absences will reveal employees who were approved under the Family Medical Leave Act and Massachusetts Parental Leave Act. In shorter term absences, employees have been required to provide a medical note by Central Administration. It would be unfair to interpret data when reviewing day to day absences. It is an expectation that employees communicate with their direct supervisor in the absence of reason, including day-to-day, short term or long term personal medical struggles. In some cases, the Office of Human Resources gets involved to request medical notes and intervene with employees who are at-risk. The release of this information will erode the trust in the employee/employer relationship. In addition, [Mr. Donahue’s] request does not outweigh the seriousness of the privacy. Each absence may or may not result in hiring a day-to-day substitute or long term substitute. The district funds these accounts in the local budget and those expenditures can [be] monitored. Based on the School’s response, it is unclear how the requested attendance records contain medical information related to a specially named individual. Further, it is uncertain how the withheld records, in their entirety, constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the information is available from other sources. PETA, 477

Superintendent Margo Ferrick SPR24/3197 Page 4 December 10, 2024 Mass. at 292. In addition, the School did not provide any supporting information to demonstrate how any privacy interest is not substantially outweighed by the public’s right to obtain this information. The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Mr. Donahue 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Michael Donahue