Kenny Warren v. Pittsfield, City of - Public Schools (SPR 20251209)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2025 SPR25/1209 Ann Marie Carpenter Director of Human Resources, Diversity and Inclusion Pittsfield Public Schools 269 First Street Pittsfield, MA 01201 Dear Ms. Carpenter: I have received the petition of Kenny Warren appealing the response of the Pittsfield 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 10, 2025, Mr. Warren requested: [1] [A] copy of the executed contract with Buckley [sic] Richardson & Gelinas (the “Firm”)[;] [2] [A] copy of the recommendations of the firm[;] [3] [A] copy of the findings of the firm if they are different[;] [4] [A] copy of the final report prepared by the firm[;] [5] [A] copy of any invoices submitted pursuant to this contract[;] [6] [A]ny documentation representing payment for services rendered under this contract. The School responded to this request on April 16, 2025. Unsatisfied with the School’s response, Mr. Warren appealed, and this case, SPR25/1209, was opened as a result. While this appeal was pending, the School provided a supplemental response on May 9, 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). 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

Ann Marie Carpenter SPR25/1209 Page 2 May 15, 2025 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. 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 April 16th and May 9th Responses Item 1 In its April 16, 2025 response, regarding Item 1 of the request, the School provided redacted responsive records as attachments and stated, “[a]ttached to this communication are three legal contracts for this fiscal year.” The School did not cite an exemption in support of its redactions. In its May 9, 2025 supplemental response to Mr. Warren and this office, the School reiterated that records responsive to Item 1 of the request were “provided on April 16, 2025[.]” Items 2 and 3 With regard to Items 2 and 3 of the request, in its May 9th response the School provided a URL and directed Mr. Warren to, “[c]lick here to be brought to the 4 of the 5 Executive Summaries outlining the findings of the firm.” The School also advised, “[t]he fifth Executive Summary is not yet complete and has not been received by the district” and noted, “[a]ny recommendations provided are embedded in this document.” Item 4 Further, the School indicated in its supplemental May 9, 2025 response that it withheld records responsive to Item 4 of the request in and cited Exemption (c) of the Public Records Law in support of its claim. Items 5 and 6 In its April 16th response, the School provided records responsive to Item 6 of the request and noted that the School, “[has] not paid any bills to date for the Bulkley Richardson contract.” Regarding Item 5, the School noted that, “[i]nvoices for the other legal contracts paid this fiscal year will be sent tomorrow.” In its May 9th response, the School also provided URLs in response to Items 5 and 6 of the request and directed Mr. Warren to, “[c]lick here to view.”

Ann Marie Carpenter SPR25/1209 Page 3 May 15, 2025 Current Appeal In his May 1, 2025 appeal petition, Mr. Warren objects to the School’s redactions of some of the responsive records and its denial of others responsive to his request. Specifically, regarding Item 1 of the request, Mr. Warren explains that he “received a . . . response to [his] request for a copy of the contract executed by the law firm hired to conduct the independent investigation that is the subject of these requests.” He additionally notes, “[t]he contract amendment has three names redacted with no explanation.” Mr. Warren further explains in his appeal, “[o]n April 17, . . . I received a follow up email from . . . [the School] indicating that [it] would provide no further information . . . Since that time I have received no further response. . . . I could see that . . . [the School’s] blanket response might have been MEANT to apply to not only the contracts but all my request concerning the investigator report . . . . But this is not clear.” Additionally, Mr. Warren refutes the School’s denial of his request for records responsive to Item 4 and states his belief that “. . . the report in question relates to matters of substantial public interest, including the conduct of public employees and the operations of a public school.” In regards to Item 5 of the request, Mr. Warren contends that “[i]n the [School’s April 16, 2025 response] you will note that it is indicated that I will be provided invoices the next day. I have never received those and/or any explanation.” In this case, where the School provided a URL to access records responsive to Item 5 in its supplemental May 9, 2025 response, I find that Mr. Warren’s appeal regarding this portion of the request is resolved. Mr. Warren may appeal the response to Items 5 and 6 if he finds them unsatisfactory. Burden of Specificity; Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. -------------------- v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The School did not meet its burden of demonstrating how information responsive to Item 1 of Mr. Warren’s request is exempt from disclosure under the Public Records Law. Based on the School’s responses, in conjunction with Mr. Warren’s appeal, it is unclear whether the School is claiming Exemption (c) to redact information from the records responsive to Item 1 of the request. It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold or redact a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding is based…”). Consequently, I find the School must identify the information it has redacted from the records it provided in response to Item 1 of the request and explain with specificity how the exemption applies to redact the records. G. L. c. 66, § 10(b).

Ann Marie Carpenter SPR25/1209 Page 4 May 15, 2025 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). 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). 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). 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 supplemental May 9, 2025 response, under Exemption (c), the School provided the following regarding its withholding of records responsive to Item 4 of the request: Regarding the full final report, the Pittsfield Public Schools asserts that the records are exempt from disclosure under M. G. L. c. 4, § 7(26)(c). . . . The records contain extremely personal information regarding the persons mentioned within those records. The allegations, which are publicly known, are serious and involve students and staff. The information contained within these documents are not available elsewhere.

Ann Marie Carpenter SPR25/1209 Page 5 May 15, 2025 When looking at the balancing test required for exemption c, it must be examined whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. With respect to the requested records, the items asserted therein do not contain information that would create a public interest over the privacy protections of those named in the document. Redactions to these particular documents would not be suitable as the entire document contains personnel information of a highly sensitive nature that would not be outweighed by the limited public interest in this particular record. Further, it is known who the staff members are and therefore redaction would not protect their interests. Further, it would also be possible to ascertain the identities of the student and adult witnesses even with redaction. The investigations were conducted specifically to determine if personnel action should or should not be taken. If records such as these were to be released, it would have a severe chilling effect on witnesses coming forward to discuss allegations such as these. Further, the public would not obtain any additional useful information beyond what is already publicly known (i.e., the general nature of the allegations and that the allegations were not sustained). Please note, the Pittsfield Public Schools is willing to submit the records at issue to the Secretary of the Commonwealth for an in-camera review if the Secretary of the Commonwealth decides that such a review is warranted. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claims made by the School to withhold records responsive to Item 4 of the request, the School 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 School’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 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

Ann Marie Carpenter SPR25/1209 Page 6 May 15, 2025 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 School is ordered to provide Mr. Warren with a response to Item 1 of his 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. Mr. Warren may appeal the substantive nature of the School’s response within 90 days. See 950 C.M.R. 32.08(1). The School is additionally ordered to provide this office with un-redacted copies of the records responsive to Item 4 of the request for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Kenny Warren