Jeanne Teichert v. Andover, Town of - Public Schools (SPR 20170804)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 28, 2017 SPR17/804 Paul P. Szymanski Assistant Superintendent Town of Andover Public Schools 36R Bartlet Street Andover, MA 01810 Dear Mr. Szymanski: I have received the petition of Jeanne Teichert appealing the response ofthe Town of Andover Public Schools (School) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mrs. Teichert requested a copy of the complete survey results including all questions, answers and open response comments for the 2016-17 Andover High School Climate and Culture Survey (Survey). Rather than providing the actual completed Surveys, the School provided a redacted spreadsheet containing a summary of the results of the Survey, withholding gender, ethnicity and comments by individual students pursuant to Exemptions (a) and (c) ofthe Public Records Law. Mrs. Teichert appealed. Requirements for petitions to the Supervisor of Records for an appeal Mrs. Teichert petitioned the Supervisor of Records (Supervisor), appealing the redacted Survey. A review of Mrs. Teichert's petition reveals that she did not provide the Records Access Officer with a copy of her petition to the Supervisor. In petitioning the Supervisor, the requester must provide a copy of such petition to the Records Access Officer associated with such petition. 950 C.M.R. 32.08(1 )(h). A Public Records Division attorney provided you with a copy ofthe appeal file, including the petition, and discussed the redacted Survey with you. 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, § 10A(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). 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

Paul P. Szymanski SPR17/804 Page 2 June 28, 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(b)(iv);. 950 C.M.R. 32.06(3); 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). 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) The June 1st response to Mrs. Teichert explains that the School redacted certain of the information on the spreadsheet pursuant to the Family Education Rights and Privacy Act (FERPA) as it operates through Exemption (a) ofthe Public Records Law. 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 Gen. 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. Gen. Chemical Corp. v. Dept. of Envtl. Quality Eng'g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The School cites FERP A to allow for the withholding of individual students' comments on the Survey. In your June 1st email response, you state that the School withheld the information because "disclosure could render individual students identifiable to persons in the community and would constitute education record information under FERP A." See 20 U.S.C. § 1232g; see also 34 C.F.R. §§ 99.30 and 99.31. The School does not specifically explain why the personally-identifiable information of students cannot be redacted per Survey question and comment to protect their privacy under FERP A. The School merely withheld all the Survey results including all questions and answers, as well as all open response comments, and claimed that FERP A allows all this information to be withheld. I find that the School did not meet its burden of providing the requisite level of detail to allow the School to withhold all this information on the Survey pursuant to FERP A as it operates through Exemption (a). Exemption (c) The School has also withheld the gender and ethnicity of the students who took the Survey. While the School's response claims that information was withheld pursuant to the

Paul P. Szymanski SPR17/804 Page 3 June 28, 2017 privacy clause of Exemption (c), the School did not explain what information was specifically withheld under the privacy clause and why. 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). Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals v. Dep't of Agric. Res., 2017 Mass. LEXIS 390, at *19-20 (June 14, 2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at *20 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. People for the Ethical Treatment of Animals, 2017 Mass. LEXIS 390, at* 19. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at *20. The School withheld all references to the gender and ethnicity of all the students who answered the Survey questions and may have provided comments, without explaining how a student's gender and ethnicity without any other identifiable information about the student would rise to an "unwarranted invasion of personal privacy." I find that the School has not met its burden of supporting its privacy claim under the second clause of Exemption (c) of the Public Records Law to withhold the gender and ethnicity notations on the Survey.

Paul P. Szymanski SPR17/804 Page 4 June 28,2017 Please note, the statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979). In addition, a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv); see also 950 CMR 32.06(4). In a conversation with a Public Records Division attorney you indicated that the School would provide Mrs. Teichert with a response to specifically explain how the exemptions claimed allow the School to withhold the redacted content from the Survey results. This office has also asked the School to explain why Mrs. Teichert could not be provided with the actual Surveys, even in a redacted format. Conclusion Accordingly, whereas the School has indicated that a supplemental response will be provided to Mrs. Teichert, I will consider this appeal closed with the proviso that the response is provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) business days. 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. Mrs. Teichert may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeanne Teichert