Marlon Bayas v. Brockton, City of - Public Schools (SPR 20252664)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 18, 2025 SPR25/2664 Bou Lim Record Access Officer Brockton Public Schools 43 Crescent Street Brockton, MA 02301 Dear Mr. Lim: I have received the petition of George Barreras appealing the response of the Brockton Public Schools (School/District) to a request for public records. See G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On May 27, 2025, Mr. Barreras requested the following records: [1] Any and all digital communication between Assistant City Solicitor ... to Brockton Public Schools Superintendent ... and/or Mayor ... and any other agents with managerial authority, and/or ..., BHS Administration and BPS Security... regarding [identified individuals] while employed at Brockton Public Schools on May 1, 2025 and beyond. [2] [A]ny and all communication regarding the termination of [an identified individual] following an incident that occurred on May 2, 2025. Prior appeal This request was the subject of a prior appeal. See SPR25/1668 Determination of the Supervisor of Records (June 26, 2025). In my June 26th determination, I found that with regard to Exemption (a) it is uncertain whether the School possesses the requested records and how the cited statute, either specifically or by necessary implication permits the School to withhold the requested records from disclosure. Additionally, I found that pursuant to Exemption (c) of the Public Records Law, it was unclear why the records may be withheld in their entirety. I further found that pursuant to the School claiming attorney-client privilege, the School must clarify whether the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such and that the communications were made in confidence and that the privilege as to these communications has not been waived and the School must provide a privilege log, 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

Bou Lim SPR25/2664 Page 2 September 18, 2025 The School provided a response on July 16, 2025. Unsatisfied with the School’s response, Mr. Barreras petitioned this office and this appeal, SPR25/2664, 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. See 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. Current appeal In his June 10, 2025 appeal, Mr. Barreras stated, “[m]y request is that your office enforce the FOIA Request so that all parties can finally view the information that has been withheld for so long.” The School’s July 16th Response In its July 16, 2025 response, the School stated as follows: Request 1 ...upon review, the District has determined that there are no responsive communications between the specified District employees and Assistant City Solicitor Karen A. Fisher. As such, there is no privilege log to provide. Request 2 The School cited Exemption (c) of the Public Records Law to withhold the requested records.

Bou Lim SPR25/2664 Page 3 September 18, 2025 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). First Clause – Personnel Information While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Association, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Association, 431 Mass. at 798. Second Clause – Privacy Analysis under the second clause of 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. 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).

Bou Lim SPR25/2664 Page 4 September 18, 2025 The types of personal information which the second clause of 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. In its response, the School asserts: The District will not confirm whether or not disciplinary records exist or provide redacted records which confirm the same by implication—the Public Records Law does not require the District to answer questions, and this information is exempt from disclosure under Exemption (c) for the same reasons explained herein and in the May 28 letter. This information is of a personal nature, would result in embarrassment to an individual of normal sensibilities if released, and there is no apparent public interest in such information. Any such information in the District’s possession is securely maintained in its personnel files and/or on its email server, and we are not aware of this information being available from other public sources. In camera inspection In order to facilitate a determination as to the applicability of the School’s claims to withhold the requested records pursuant to Exemption (c) of the Public Records Law, the School must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). 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. Massachusetts 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).

Bou Lim SPR25/2664 Page 5 September 18, 2025 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 School is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: George Barreras Peter C. Sumners, Esq.