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December 22, 2017
Individual Superintendent Evaluations Not Subject to Release under Open Meeting Law
In a case handled by our office, the Attorney General's Office, through its Division of Open Government, recently ruled that performance evaluations written by individual school committee members as a part of preparing the superintendent's composite evaluation document are not subject to release under the Open Meeting Law. The full case is available here.
In its Frequently Asked Questions, the Attorney General had previously indicated that committee members' individual evaluations were subject to release.  The Department of Elementary and Secondary Education had distributed these FAQs with its guidance regarding superintendent evaluations.  As a result, many school committees had released individual evaluations upon request.
The section of the Open Meeting Law the Attorney General relied upon in issuing the FAQ on this point, however, was based on the provision that addresses documents used during an open session.
In this case, as we believe is common practice for most committees, the chair distributed only the composite evaluation, which was subsequently approved by the school committee.  Because the individual evaluations were not used by the school committee at an open meeting, they were not subject to release upon request under the Open Meeting Law, according to the Attorney General. Instead, the documents are subject to the Public Records Law, which means they may be treated as confidential personnel records and exempt from disclosure.
Based on the Attorney General's Determination, evaluations completed by individual school committee members, as compared to the composite document, do not need to be released as long as they have not been used in an open session. 
Note that the Supreme Judicial Court currently has a case before it that may result in it revisiting its prior decision that individual evaluations are exempt from disclosure under the Public Records Law.  We will provide another update on this issue once the Supreme Judicial Court issues its decision. 
Please contact any member of our Public Education Team if you have any questions about this topic.

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Mirick O'Connell is a full-service law firm with offices in Worcester, Westborough and Boston, Massachusetts.  The Firm's principal practice groups include Business; Creditors' Rights, Bankruptcy and Reorganization; Elder Law; Family Law and Divorce; Intellectual Property; Labor, Employment and Employee Benefits; Land Use and Environmental Law; Litigation; Personal Injury; Public and Municipal Law; and Trusts and Estates.
This client alert is intended to inform you of developments in the law and to provide information of general interest.  It is not intended to constitute legal advice regarding a client's specific legal issues and should not be relied upon as such.  This client alert may be considered advertising under the rules of the Massachusetts Supreme Judicial Court.