Timothy R. McGuire v. Fall River, City of - Public Schools (SPR 20181086)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 6,20 18 SPRl811086 Rebecca L. Caron City of Fall River - Public Schools 4 17 Rock Street Fall River, MA 02720 Dear Ms. Caron: I have received the petition of Timothy R. McGuire appealing the response of the City of Fall River - Public Schools (School) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 10,201 8, Mr. McGuire requested "[all1 school discipline reports, received within the past 36 months and which allege or comment upon an incident in which a trans-gender student threatened or bullied a female student at Durfee High School in Fall River, MA." On July 18,2018 , the School denied his request claiming the responsive record is exempt from disclosure pursuant to Exemptions (a) and (c) of the Public RecordsLaw. G. L. c. 76, 5 5; G. L. c. 4, 5 7(26)(a);20U.S.C. 12328; G. L. c. 71B; G. L. c. 71, 5 34D; G. L. c. 4, 5 7(26)(c); 34 C.F.R. 5 99.3(g). Tlze 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, 5 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, 5 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, 5 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. One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre * pre@sec.state.ma.us

Rebecca L. Caron Page 2 August 6,2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 4 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The School's July 18'" response The School indicates that it is denying Mr. McGuire's request under Exemption (a) of the Public Records law, because "the records of individual students that [Mr. McGuire is] seeking are necessarily exempted from disclosure pursuant to several statutes, including: the Family and Educational Rights and Privacy Act (FERPA), 20 U.S.C. 12328; M.G.L. c. 71B; M.G.L. c. 71, tj 34D; and the regulations implementing these statutes." The School asserts that it "would not be authorized to provide the records (if any such records exist) to [Mr. McGuire], even in redacted form, as FERPA prevents the [School] from disclosing information, even in redacted form, that is requested by a party whom the school reasonably believes knows the identity of the student to whom the education record relates. 34 C.F.R. 4 99.3(g). The information provided in [Mr. McGuire's] request for public records is targeted towards an alleged incident involving two specific students, and the detailed nature of [Mr. McGuire's] request gives the [School] reason to believe that [Mr. McGuire], as the requesting party, know the identity of the student(s) to whom such records (if they exist) relate." The School additionally indicates that the requested records "are exempt from the public records law under the privacy exemption, M.G.L. c. 4, 4 7(26)(c)." The School explains that the "request is for disciplinary information specifically involving two individual students, and [Mr. McGuire's] request identifies at least one student by their gender identity. The detailed information in [Mr. McGuire's] request regarding the alleged incident gives the [School] reason to believe that release of any such information would constitute an invasion of privacy that may reveal 'intimate details of a highly personal nature' about a student." The School asserts that "producing [the requested records] would constitute a violation of the privacy exemption that is akin to revealing marital status, paternity, substance abuse, government assistance, family disputes and reputation. The public interest in disclosure of the documents [Mr. McGuire has] requested.. .does not outweigh the privacy interest associated with disclosure of such intimate information as the gender transition status of students." Despite the School's response, it remains unclear what records the School possesses and specifically how those records constitute disciplinary records under FERPA. It is additionally unclear why the records cannot be redacted of any personally identifying information and how Mr. McGuire would be able to identify the students involved. In camera review I find that in order to facilitate a determination as to the applicability of Exemption (a) and (c) claim made by the School to withhold the records in their entirety, the School must provide this office with un-redacted copies of the responsive resumes for an in camera inspection

Rebecca L. Caron Page 3 August 6,20 18 without delay. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, 5 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. Rock v. Massachusetts Cornrn'n Against Discrimination, 384 Mass. 198,206 (1 98 1) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The School may provide this office with a further explanation of its position regarding the applicability of Exemption (a) and (c) to the responsive records. However, please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Order Accordingly, the School is hereby ordered to provide this office with un-redacted copies of the responsive records without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy R. McGuire