Ronald Alexander v. Wellesley, Town of - Public Schools (SPR 20170112)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 8, 2017 SPR17/112 Judith Belliveau Assistant Superintendent/Records Access Officer Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Belliveau: I have received the petition of Ronald Alexander appealing the response of the Town of Wellesley - Public Schools (School) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Alexander requested access to inspect the bullying complaints about Wellesley athletic coaches received by the Schools' Superintendent David Lussier, and the detailed set of examples of bullying set by Ms. Chryssicas. Mr. Alexander seeks to inspect the "original" electronic versions of the records or printouts of the electronic records, if they exist in this format. The School denied the request pursuant to the Family Education Rights Privacy Act (FERP A) and state law and regulations regarding student records as these laws operate through Exemption (a) and the first and second clause of Exemption (c) of the Public Records Law. Mr. Alexander appealed. 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, § lOA(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 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, §§ lO(b), 950 C.M.R. 32.06(3); see also Dist. Attomev 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. 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

Judith Belliveau SPRl 7/112 Page 2 February 8, 201 7 Exemption (a ) The January 23, 2017 response by the School indicates that the School will withhold the records pursuant to Exemption (a) of the Public Records. Exemption (a) allows the withholding of those 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 School cited the federal Family Education Rights and Privacy Act (FERP A); the state student record statutes and regulations concerning confidentially of student record information and regulations concerning confidentially ofreport on bullying. See 20 U.S.C. § 1232g, 34 C.F.R. §§ 99.30 and 99.31; see also G. L. c. 71, §§ 34D, 60, G. L. c. 71B, § 1; and 603 C.M.R 23.07(4) and 603 C.M.R. 49.07(1). "Personally identifiable information," as used in FERP A, includes, but is not limited to, the student's name; the names of the student's parents or other family members; the address of the student or student's family; personal identifiers, such as the student's social security number; and indirect identifiers, such as the student's date of birth. See 34 C.F.R. § 99.3. The definition will also include "[O]ther information that, alone or in combination, is linked or linkable to a specific student that would a11mv a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty," and "[I)nformation requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates." Id. The state regulations concerning education records defines, student record as, "[R]ecords consisting of 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. 603 C.M.R. 23.00.

Judith Belliveau SPRl 7/112 Page 3 February 8, 2017 Under state law, the school is prohibited from disclosing student records or student record information to a third party without the specific, informed written consent of either the eligible student or the student's parent(s). See 603 C.M.R. 23.07(4). Further, regarding incidents of bullying, regulations promulgated by the Department of Education expressly provide that schools may not publicly disclose information from a student record of a target (victim) or an aggressor. See G. L. c. 71, § (School bullying prohibited; bulling prevention and intervention plans; reporting of bullying incident date); see also 603 C.M.R. 49.07(1) (Confidentiality ofrecords of bullying incidents). This regulation reads in pertinent part: (1) A principal may not disclose information from a student record of a target or aggressor to a parent unless the information is about the parent's own child. (2) A principal may disclose a determination of bullying or retaliation to a local law enforcement agency ... (3) A principal may disclose student record information about a target or aggressor to appropriate parties in addition to law enforcement in connection with a health or safety emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals ... [I]s limited to instances in which the principal has determined there is an immediate and significant threat to the health or safety of the student or other individuals. It is limited to the period of emergency and does not allow for blanket disclosure ofs tudent record information. 603 CMR 49.00: M.G.L. 71, § 370 (emphasis added) (February 6, 2013 ed). Mr. Alexander suggests that the School could redact the identifying information of the students who may the victims. In a discussion with Ivria Glass Fried, an attorney at Miyares and Harrington, LLP, the School's Legal Counsel, an attorney on my staff learned that the even if the School chose to disclose the bullying reports, the School is unable to redact the records in such a way as to protect the identities of both the victims and the aggressors. It was explained that the individuals involved are a small number of individuals, the athletic department is small and the community is small, making it easy to identify both the victims and aggressors even with redaction. It is also my understanding that one of the parents was identified in a news article, making it even more difficult to shield the identities of all victims and the aggressors. Therefore, I find that the student record laws and regulations as they operate through Exemption (a) will allow the School to withhold the records in their entirety. Exemption (c) The School also indicates that, even if the records were not exempt in their entirety pursuant to Exemption (a), the School is justified in withholding the records pursuant to both clauses of Exemption ( c) of the Public Records Law. 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

Judith Belliveau SPRI 7/112 Page 4 February 8, 2017 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). First clause The first clause of Exemption ( c) 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 1nformation that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. 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. Your January response explains that the bullying complaints and the list of incidents that occurred against victims of the bullying by coaches who were formerly employed by the School details specific information about the student's mental health and physical well-being. In some cases, physical manifestations occurred as a result of the vulgar and offensive statements made to the victims by the aggressors. As a result of the bullying, the victims describe how it impacted their self-esteem and confidence. The School also informed Mr. Alexander and this office that the School also classifies these records as personnel information that was useful in making employment decisions on the coaches involved in the incidents. It is my understanding that these individuals are no longer employed by the School. The Supreme Judicial Court has refined the analysis to be employed when considering the public record status of personnel records. The Court has defined personnel information that is "useful in making employment decisions regarding an employee" may be withheld pursuant to the first clause of Exemption (c) of the Public Records Law. Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The Court found that personnel information includes "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee." Wakefield at 798. I find that the School has supported its claim that the first clause of Exemption (c) would allow the School to withhold the medical and personnel information contained in the records. 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

Judith Belliveau SPRl 7/112 Page 5 February 8, 2017 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, 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 courts have noted that an individual's expectation of privacy is a factor to be considered when determining whether the detail is of a highly personal nature. Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988). It is appropriate here to examine the cases that underlie the standard of "intimate details of a 'highly personal' nature" enunciated in Hastings & sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812, 818 (1978), quoting Getman v. NLRB, 450 F.2d 670, 675 (D.C. Cir. 1971). The Getman court held that "in themselves a bare name and address give no information about an individual that is embarrassing." Getman, 450 F.2d at 675. The use of the word "embarrassing" connotes phisical traits or personal behavior. The Hastings court also considered a case wherein the court discussed the showing of "distressing mental symptoms" in the defendant's documentary film. Commonwealth v. Wiseman, 356 Mass. 251,258 (1969), cert. denied, 398 U.S. 960 (1970). The Wiseman court further included in the realm of privacy "inmates in situations which would be degrading to a person of normal mentality and sensitivity, or exhibiting painful aspects of mental disease." Id. Again, the concept of privacy was rooted in personal traits or behavior. In this appeal, not only are the requested records protected student records, but also records regarding minors who were subjected to degrading and distressing anguish within a school setting. The Commonwealth takes great pains to protect minors. The public disclosure of the bullying records, which would subject the victims and their families to further humiliation and distress, constituting an invasion of personal privacy and the public's interest does not outweigh the privacy of the victims. Neither does the public's interest in the identities and actions of the accused aggressors outweigh the privacy interest of the aggressors. \Vhile individual athletes may be aware of the alleged treatment, the information has not been widely disseminated. The bullying reports contain information that ifreleased will significantly harm the coaches' reputations. Whereas, the these individuals are no longer employees of the School, dissemination of records that were used to render an employment decision by the School District, may be harmful to the individual's reputation in the community. The effect of any damage to the individual's

Judith Belliveau SPRl 7/112 Page 6 February 8, 2017 reputation could result in an inability to retain employment in the same or another community. Prevention of damage to one's reputation is clearly what the privacy clause of Exemption (c) seeks to do. Therefore, I find that the School has also proved that the second clause of Exemption ( c) will allow the School to withhold the requested bullying records. Accordingly, whereas the School has supported its Exemption (a) and Exemption (c) claims to withhold the records of bullying complaints and lists of bullying incidents in their entirety, I consider this administrative appeal closed. If Mr. Alexander is satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Ronald Alexander, Ivria G. Fried, Esq.