Collin Binkley v. Department of Elementary and Secondary Education (SPR 20180051)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

January 24, 2018 SPR18/051

Jacqueline Reis

Media Relations Coordinator

Department of Elementary and Secondary Education 75 Pleasant Street

Malden, MA 02148

Dear Ms. Reis:

I have received the petition of Collin Binkley of The Associated Press appealing the response of the Department of Elementary and Secondary Education (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Binkley

requested an electronic copy of all 2016- 2017 restraint data that the school districts provided to the Department.

Previous appeals

The requested records were the subject of two previous appeals. See 17/1635; 17/1676 Determinations of the Supervisor of Records (November 30, 2017 and December 19, 2017). I closed SPR17/1635 with the proviso that the Department provide Mr. Binkley with a response to his request. On December 1*, the Department provided a spreadsheet with the total number of incidents of restraining students in public school districts, collaboratives and in non-public schools for the 2016-2017 school year.

Mr. Binkley appealed the December 1“ response, and SPR17/1676 was opened. In my determination in SPR17/1676, I ordered the Department to provide Mr. Binkley with a response without delay that explained what records the Department has that are responsive to the request, and to claim any exemptions with specificity i in order to withhold any responsive record(s). The Department provided a December 22" response, and Mr. Binkley petitioned this office for further assistance. As a result, the current appeal, SPR18/051 was opened.

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

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

Jacqueline Reis SPR18/051 Page 2 January 24, 2018

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(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).

The Department’s December 22, 2017 and January 23, 2018 responses

In its December 22™ response, the Department explained that the record provided to Mr. Binkley is an existing document regarding the total number of restraints for the 2016-17 school year. However, the Department noted the raw data regarding the restraints that was uploaded to the Department’s secure portal by the school districts and approved private schools is stored in separate databases and not within one document or record.

In both the December and January responses and during a telephone discussion with you and Department Legal Counsel, Joshua Varon, the Department explained to an attorney in the Public Records Division that currently the restraint data is in databases and presently exists in numeric codes in the database and is organized by student. The Department contends that it must analyze the data for errors, verify any discrepancies found in the coded data, and possibly request further information from the schools that may have been inadvertently omitted by the schools.

In his January 23, 2018 email response, Attorney Varon confirms that the database contains numeric codes “organized by student, that address the categories of information collected” by the Department about incidents of restraint. He indicates that some school districts and private schools submitted data by email in spreadsheet attachments, and that said attachments are all formatted differently from each other and from the format the Department required in its application. The Department contends that the numerically coded information is essentially meaningless, not responsive to Mr. Binkley’s request, and does not constitute a public | record.

The Department is advised that the Public Records Law and its Regulations broadly define ‘public records’ to include:

all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth

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or any political subdivision as defined in section 1 of chapter 32, unless such materials or data fall within the following exemptions...

G. L.c. 4, § 7(26).

Whereas, the data and information was received by, and is in the possession of, the Department, | find that the restraint data does constitute a public record as defined by G. L.c. 4, § 7(26). Moreover, a review of Mr. Binkley’s request indicates that he was requesting “restraint data” for the 2016-2017 school year. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Consequently, the 2016-2017 school year restraint data in the Department’s possession, in whatever form it may currently exist, would be responsive to Mr. Binkley’s request.

Exemption (a)

In its January 23" response, the Department asserts the records may be withheld under the federal Family Educational Rights Privacy Act (FERPA). 20 USC § 1232g. 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, 87 (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 exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

The Department informed Mr. Binkley that because the records are organized per student, the data contains information that is protected under FERPA. See 20 USC § 1232g. Attorney Varon states in his response, “[p]rotection of student privacy requires not just the removal of:

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direct identifiers, but also the suppression of ‘other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school

community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.’ 34 CFR § 99.3.”

Duty to segregate exempt material

Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department is advised that it has a duty to segregate those portions of a record that are specifically exempt from disclosure, and provide the balance of the record. 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).

Exemption (d)

In its January 23 response, the Department claims that Exemption (d) applies to withhold the data until it decides how best to organize and aggregate the data into a report. Attorney Varon states, “until these policy decisions and questions of legal compliance have been finalized, the deliberative process exemption applies to this data.”

Exemption (d) applies to:

inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based

G. L. c. 4, § 7(26)(d).

Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure).

Attorney Varon further contends that executive senior staff, policy experts, data analysts, and attorneys are presently working to make the determinations necessary to publish the data. He states, “application of the deliberative process exemption to the requested records will ensure that ESE (the Department) can properly analyze the issues and generate reports that are accurate, reliable, and forthcoming, while also ensuring compliance with federal privacy laws.”

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The Department has not demonstrated that the data constitutes inter-agency or intra- agency memoranda or letters relating to policy positions being developed by the agency.

Consequently, the Department has not met its burden to establish that Exemption (d) permits the withholding of this data.

Order

Accordingly, the Department is hereby ordered to provide Mr. Binkley with the requested records, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. Any response or cover letter that accompanies the records

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.

Sincerely,

Rebecca S. Murray Supervisor of Records

ce: Mr. Collin Binkley