Andrew McIsaac v. Boston, City of - Public Schools (SPR 20161251)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 4, 2017 SPR16/1251 Alissa Ocasio, Esq. Office of the Legal Advisor City of Boston-Public Schools 2300 Washington Street, 4th Floor Roxbury, MA 02119 Dear Attorney Ocasio: I have received the petition of Andrew Mcisaac appealing the response of the City of Boston-Public Schools (School) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Mcisaac requested a copy of all Physician's Statements for Temporary Home or Hospitalization forms (Physician's Statements) received by the School during the 2015-16 school year. Previous appeal The requested records were the subject of a previous appeal and determination by this office. See SPR16/1173 Determination ofthe Supervisor ofRecords (December 27, 2016). In my determination I found that the School did not meet its statutory and regulatory obligation of support the Exemption (a) and Exemption (c) claims to withhold the records in their entirety. In compliance with my December 27 determination, the School provided Mr. Mcisaac with a December 29 detailed response to support its exemption claims to withhold the records. Mr. Mcisaac appealed the December 29response. 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 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). 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

Alissa Ocasio, Esq. SPR16/1251 Page 2 January 4, 2017 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. Exemption (a) In its December 29 letter, the School indicated its intent to withhold the records pursuant to Exemption (a) of the Public Records Law. 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 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). The applicable regulation that permits a custodian of records to withhold records pursuant to Exemption (a) is the Code ofMassachusetts Regulations (Code), which defines "student record" as: the transcript and the temporary record, including all information recording and computer tapes, microfilm, microfiche, or any other materials regardless of physical form or characteristics concerning a student that is organized on the basis of the student's name or in a way that such student may be individually identified, and that is kept by the public schools of the Commonwealth. The term as used in 603 C.M.R. 23.00 shall mean all such information and materials regardless of where they are located 603 C.M.R. 23.02. A "transcript" contains administrative records which are needed to "reflect the student's educational progress and to operate the educational system." It is limited to the student's name, address, phone number, birthdate, courses, grades, course credits, grade level, and the name and contact information for their parents. 603 C.M.R. 23.02. A "temporary record" is defined as "all of the information in the student record which is not contained in the transcript." 603 C.M.R.

Alissa Ocasio, Esq. SPR16/1251 Page 3 January 4, 2017 23.02. The information contained within it "shall be of importance to the educational process" and may include "standardized test results, class rank ... , extracurricular activities, and evaluations by teachers, counselors, and other school staff." Id. Records that are not "organized on the basis of the student's name or in such a way that the student may be individually identified" may not be withheld as student records. 603 C.M.R. 23.02; see also City of Boston School Committee v. Boston Teachers Union, 22 Mass. L. Rep 15 (2006). It is my understanding that the requested Physician's .Statements are kept and organized on the basis of the student's name and held as student records. The School's December 29 response explains that whereas the record is restricted as student record information, its confidentiality is protected and may only be disclosed to the student, parents and school administrators. See 603 CMR 23.07(4) which states: "[N]o third party shall have access to information in or from a student record without the specific, informed written consent of the eligible student or the parent." Exemption (c) The School has also stated that Exemption (c) ofthe Public Records Law applies to withhold the record in its entirety as medical information which if disclosed would constitute an unwarranted invasion of the student's personal privacy. 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). Exemption (c) contains two separate and distinct clauses. First Clause The first clause, relevant to this determination, creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Corum. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987).

Alissa Ocasio, Esq. SPR16/1251 Page 4 January 4, 2017 A review of the blank Physician's Statement form provided to Mr. Mcisaac with the December 29 response reveals that the student's physician must identify his/her medical specialty, the medical condition(s) and medical information of the student, what services are required for the student's education and a time frame for the student's return to school. The information contained on the form is medical information provided on behalf of the student by his/her personal physician and the type of information that the first clause of Exemption (c) is meant to protect from disclosure. Therefore, I find that the School may withhold all information regarding the student's medical information, including any information that could identify the student's medical condition(s). Second Clause 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, 3 80 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, 377 Mass. 151, 154 (1979). The second clause of Exemption (c) requires record custodians 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. The information contained in the Physician's Statement is sufficiently personal to trigger the second clause of Exemption (c), such as the student's medical information, the student's name, date of birth, address and the educational and medical services that the student is receiving or needs to receive and by whom. Note that much of this information is also protected by the first clause of Exemption (c) and the laws and regulations pertaining to student records. I find that the School has met its burden of supporting its Exemption (c) claim to withhold the Physician Statements. The School may withhold information regarding the personal information of the student protected by the student records law and medical and private information under both clauses of Exemption (c). Your December 29letter states that given that all ofthe information entered into these Physician Statements is protected, confidential and exempt from disclosure, the cost to the requester for redaction would not be a reasonable expense to assess to the requester. This office's review of the form and the type of protected, confidential information that is contained in these particular forms reveals that the requester would receive a fully redacted form, which

Alissa Ocasio, Esq. SPR16/1251 Page 5 January 4, 2017 would be of no use once disclosed. However, the School has indicated that ifMr. Mcisaac still seeks copies of all the Physician Statements from the 2015-16 school year, the School will provide a written, good faith estimate for the cost to provide the redacted records. Mr. Mcisaac should contact the School, if he is still interested in receiving copies of the redacted records, and a written, good faith estimate should be provided by the School. Accordingly, I find the School has met its statutory and regulatory obligation under the Public Records Law, and may properly withhold the student record information, personally identifiable information and medical information and educational information pursuant to Exemptions (a) and (c). This appeal is closed. Sincerely, f)J;tua_ V/1{a!v{,~ Rebecca S. Murray Supervisor of Records cc: Andrew Mcisaac