Tim McGuire v. Westport, Town of - Community Schools (SPR 20190209)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 13, 2019 SPR19/0209 Gary S. Reese, Ed.D Superintendent of Schools/Records Access Officer Town of Westport-Community Schools 17 Main Road Westport, MA 02790 Dear Superintendent Reese: I have received the petition of Tim McGuire appealing the response of the Westport Community Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on December 3, 2018, Mr. McGuire requested the following records: "l) All documents including e-mails distributed by any faculty advisor to the Westport High School Gay-Straight Alliance and the students who are members of that group. This request is limited to materials distributed since January 201 7; and 2) All documents including e-mails exchanged between any faculty adviser to the Westport High School Gay-Straight Alliance and any Planned Parenthood office since January 2017." The School provided a response on December 11, 2018, which included responsive records in redacted form. Unsatisfied with the School's response, Mr. McGuire petitioned this office and this appeal, SPR19/0209, was opened as a result. While this appeal was pending, the School provided a supplemental response on February 11, 2019. 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). 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

Superintendent Reese, Ed.D. SPR19/0209 Page2 February 13, 2019 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)(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 December Jfh and February 11th responses In its December 11, 2018 response, the School indicates that it redacted any document that "included identifiable student information (ie. Names or email addresses) ... in order to protect the confidentiality of [its] students .... " In its February 11, 2019 supplemental response, the School explains that the postcards were sent " ... as part of a mass holiday postcard writing campaign by students involved with the Westport Community Schools Gay-Straight Alliance, a student affinity group, to incarcerated LGBTQ and/or HIV/AIDS-positive individuals." The School claims that "[c]ontact information for these incarcerated individuals was provided to the [School] by Black and Pink, a non-profit organization that advocates on behalf of incarcerated LGBTQ individuals." The School states that it provided 206 pages of records with redactions of certain exempt information related to the identifying information of students and/or incarcerated individuals, including in particular such identifying information as contained on postcards from District students." As such, the School claims that it redacted this information pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Exemption (a) 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 Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Superintendent Reese, Ed.D. SPR19/0209 Page 3 February 13, 2019 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 statute and regulations provide in relevant part: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information ... Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. C. 6, § 167. It is the purpose of these regulations to assure that criminal history record information wherever it appears is collected, stored, and disseminated in a manner to ensure the accuracy, completeness, currency, integrity, and security of such information and to protect individual privacy. 28 C.F.R. 20.1. 803 C.M.R. 7.00 applies to all criminal justice agencies, as defined by both M. G. L. c. 6, § 167 and 28 C.F.R. 20, and to all individuals accessing, using, collecting, storing, or disseminating criminal justice information, including criminal history record information, obtained from or through the CJIS or any other system or source to which the DCJIS provides access. 803 C.M.R. 7.01(3).

Superintendent Reese, Ed.D. SPR19/0209 Page 4 February 13, 2019 Under Exemption (a), the School claims that "CORI includes information 'that is recorded as a result of the initiation of criminal proceedings or other consequent proceeding' ... and the CORI confidentiality requirements apply 'to all criminal justice agencies, as defined by both M.G.L. c.6, § 167 and 28 CFR 20, and to all individuals assessing, using, collecting, storing, or disseminating criminal justice information, including criminal history record information, obtained through the CJIS or any other system or source to which the DCJIS provides access', 803 CMR 7.01(3) ...." Thus, the School asserts that "CORI information clearly does not lose its protected status due solely to the fact that it is in the possession of a school district." Exemption (c) Exemption ( c) permits the withholding of: 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). First clause ofE xemption (c) - medical 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). The first clause 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 Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 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). Under the first clause of Exemption (c), the School states that even if the information is not exempt as CORI information under Exemption (a), the information is exempt under Exemption (c). The School claims that Exemption (c) applies to" ... both information that directly identifies a person and with respect to information which creates a grave risk that a person could be indirectly identified." Citing to the Globe Newspaper Co. and Wakefield decisions, the School contends that "[g]iven that the identity of the incarcerated individuals is likely to be connected to their sexual orientation and/or HIV/A IDS status, this information is absolutely exempt as medical information under the first clause of [Exemption (c)]."

Superintendent Reese, Ed.D. SPR19/0209 Page 5 February 13, 2019 Second clause ofE xemption (c) - privacy 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 (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (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 292 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. PETA , 4 77 Mass. at 291. 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 292. With respect to the second clause of Exemption ( c ), citing case law, the School claims it has" ... determined that the incarcerated individuals identifl:ied] have a substantial interest in their identifying information on the post cards that were produced to Mr. McGuire, especially given that the incarcerated individuals are part of a vulnerable population and the identifying information is connected to their sexual orientation and/or HIV/AIDS status." The School also explains that " ... the public has no interest in the disclosure of the identity of incarcerated individuals who received postcards as part of a mass letter-writing campaign, in their sexual orientation, and/or in their HIV/AIDS-positive status. [Hence,] ... [the School] has determined that the individuals' privacy interest in the information outweighs the public interest served by disclosure and, as such, the information must be withheld as exempt under the second clause of [Exemption (c)]." In light of the School's response, I find the School has met its burden to withhold the redacted information under Exemption ( c) of the Public Records Law. As such, I decline to opine on the School's Exemption (a) claim supporting non-disclosure.

Superintendent Reese, Ed.D. SPR19/0209 Page 6 February 13, 2019 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. McGuire is not 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: Tim McGuire