Paul C. Nordberg v. Department of Elementary and Secondary Education (SPR 20160176)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 21, 2016 SPR16/176 Ms. Debra M. Comfort, Esq. Associate General Counsel Department of Elementary & Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Attorney Comfort: I have received the petition of Paul Nordberg appealing the response of the Department of Elementary & Secondary Education (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Nordberg requested a computer printout pertaining to a specifically identified individual's license information (Request 1) and "any and all document(s)" pertaining to the Department's decision whether to issue a particular license to the individual. In a response dated January 20, 2016, the Department provided a copy of the record responsive to Request 1 but redacted certain information under the Fair Information Practices Act (FIP A). G. L. c. 66A. With respect Request 2, the Department indicated it already provided all responsive records. Mr. Nordberg appealed the redactions within the record responsive to Request 1. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Debra M. Comfort, Esq. SPR161176 Page2 March 21, 2016 January 20 response In the Department's January 20 response, you explain "[t]he document was redacted in accordance with [FIPA], G. L. c. 66A, which generally prohibits the disclosure of personal data without the consent of the data subject, unless such data is a public record." Further, you state "[t]he information redacted is not related to a license that [the individual] holds and therefore is not a public record." FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that "determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G.L. c. 4, §7 Twenty-sixth, and subject to the disclosure provisions of G.L. c. 66A"). FIP A, by itself, cannot justify the redactions. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIP A may also operate to restrict disclosure. The Department has not proved that the redacted information is exempt under FIP A because it did not explain how the information is exempt from the definition of public records. As a result, the Department failed to meet its burden of explaining with specificity how the redacted information is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). An attorney on my staff provided you a copy of Mr. Nordberg's appeal and you indicated the Department would be willing to provide a supplemental response to Mr. Nordberg that addresses the issues discussed above. Conclusion Accordingly, the Department is hereby ordered, within ten (1 0) days, to provide Mr. Nordberg a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Nordberg a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Ms. Debra M. Comfort, Esq. SPR16/176 Page 3 March 21, 2016 If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at htt ://www.sec.state.ma.us/ re/ re df/ uide. df. Attorneys on my staff are available during regular business hours to answer general uestions regarding the Public Records Law. In addition, members of my staff will visit a record custodian in person to conduct training workshops on the Public Records Law p requ st. Please contact my office directly at the telephone number provided in this dete inaf fo further information. cc: Mr.Paul~ordberg