Molly Rockwood v. Hingham, Town of - Public Schools (SPR 20250623)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 13, 2025 SPR25/0623 Kathryn Roberts Superintendent Hingham Public School District 220 Central Street Hingham, MA 02150 Dear Superintendent Roberts: I have received the petition of Molly Rockwood, Esq., of Clifford & Kenny, LLP, appealing the response of the Hingham Public 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 December 19, 2024, Attorney Rockwood requested the following records regarding an incident that occurred on June 17, 2024: [1] Any and all investigation report(s) including draft report(s) and recommendations; [2] Any and all witness statements; [3] A copy of the investigator’s notes; [4] Any and all written correspondence including but not limited to emails and text messages related to this incident and the investigation performed by the District into the event; [5] Any and all written correspondence including but not limited to emails and text messages with the certified union representative regarding the June 17, 2024 incident. Previous Appeal This request was the subject of a previous appeal. See SPR25/0343 Determination of the Supervisor of Records (February 14, 2025). In my February 14th determination, I found that the District had not met its burden to withhold responsive records in their entirety under Exemption (c) of the Public Records Law, and ordered that Attorney Rockwood be provided with a further response. The District provided a response on February 28, 2025. Unsatisfied with the response, Attorney Rockwood petitioned this office and this appeal, SPR25/0623, was opened as a result. 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

Kathryn Roberts SPR25/0623 Page 2 March 13, 2025 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. 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 District’s February 28th Response In its February 28, 2025 response, the District cited Exemption (c) of the Public Records Law to withhold records responsive to Item 1 and Item 3 of the request. The District further cited Exemption (e) of the Public Records Law to withhold records responsive to the Item 3 of the request. Current Appeal In her March 5, 2025 petition to this office, Attorney Rockwood seeks to appeal the District’s withholding of responsive records. Exemption (c) Exemption (c) permits the withholding of: 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).

Kathryn Roberts SPR25/0623 Page 3 March 13, 2025 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). This exemption requires 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. In its February 28th response, the District stated: The responsive documents concern personnel records of an identified employee of the Hingham Public Schools as they are disciplinary in nature. These same records also fall under the privacy exemption as disclosure of this information would result in an unwarranted invasion of the employee’s privacy as the documents concern the employee’s reputation. While the public certainly has the right to know whether employees are performing their duties effectively, these documents do not discuss that information – they are investigatory documents related to a personnel matter. The requesting party … knows the identity of the individuals involved in the investigation. Accordingly, no redaction would prevent disclosure of identifiable personnel records and/or an unwarranted invasion of an employee’s privacy.

Kathryn Roberts SPR25/0623 Page 4 March 13, 2025 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. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). 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 such 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 were not part of such a governmental file. In its February 28th response, the District stated: The notes requested are the personal notes of the investigator, were not shared with any other employee, and are not maintained as part of the files of the Hingham Public Schools. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (c) and (e) claims made by the District to withhold responsive records, the District must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the District’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the

Kathryn Roberts SPR25/0623 Page 5 March 13, 2025 judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the District is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Molly Rockwood, Esq. Sarah C. Spatafore, Esq.