Michael DiPronio v. Needham, Town of - Public Schools (SPR 20160364)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 14, 2016 SPR16/364 Mr. Daniel E. Gutekanst, Ph.D. Superintendent Town of Needham-Public Schools 1330 Highland Avenue Needham, MA 02492 Dear Dr. Gutekanst: I have received the petition of Michael DiPronio appealing the response of Town of Needham-Public Schools (School District) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Mr. DiPronio requested copies of four categories of records from 2012-2016. The records in this appeal were provided by the School District as a result of a previous order by this office. See SPR16/291 Determination of the Supervisor of Records (May 20, 2016). The School District provided Mr. DiPronio with the responsive settlement agreements, legal bills and insurance policies/agreements in a redacted format. It is my understanding that the School District redacted the records under Exemptions (a) and (c) ofthe Public Records Law as student record information and personal information, including personally identifiable information as noted in a Supreme Judicial Court case, Champa v. Weston Public Schools, 473 Mass. 86 (2015). Mr. DiPronio appealed the redaction of the records, believing that the School District overly redacted the records. In his petition Mr. DiPronio states that the School District redacted the name of the out-of-district school that the student attends, the amount of tuition paid, the cost of the transportation, the portion of the tuition paid by the parent, and the personal pro-nouns that refer to the individuals who are the subject(s) of the records. 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, § 10 ( c); 950 C.M.R. 32.08(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical OneAshburron Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Dr. Daniel E. Gutekanst, Ph.D. SPR16/364 Page 2 June 14, 2016 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 District 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, § 1O (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 fees are paid, a records custodian 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 http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. School District response lacked specificity The School District redacted the records pursuant to Exemption (a); however the School District failed to specifically explain how that exemption and the applicable statute that operates through Exemption (a) allows the School District to redact the information from the records that is the subject of this appeal. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, §7 (26) (a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or

Dr. Daniel E. Gutekanst, Ph.D. SPR16/364 Page 3 June 14, 2016 necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). I find that the School District has failed to cite any statute and specifically explain how that statute operates through Exemption (a) to allow the School District to withhold records or portions of records. Exemption (c) The School District has also claimed Exemption (c) to withhold certain information in the records stating in its response that the School District redacted "highly personal and identifiable information." This response did not provide Mr. DiPronio a detailed, written response that specifically explains how Exemption (c) applies to withhold the particular information within the content of the records that is the subject of this appeal. Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26) (c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Examples of"intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family fights and reputation. Id. at 626 n.2. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 3 77 Mass. 151, 154 (1979).

Dr. Daniel E. Gutekanst, Ph.D. SPR16/364 Page 4 June 14,2016 In claiming the second clause of Exemption (c), record custodians are required to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. I find that the School District has failed to meet its burden of specifically explaining how Exemption (c) applies to the redacted information that is the subject ofthis appeal. Order I find the School District has failed to properly respond to a request for public records. Accordingly, the School District is hereby ordered without delay to provide Michael DiPronio with a detailed written response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic co~oft · s response to this office at pre@sec.state.ma.us. \ ' I cc: Mr. Michael DiPronio