Jeanne Teichert v. Andover, Town of - Public Schools (SPR 20190639)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 9, 2019 SPR19/0639 Nicole L. Kieser Town of Andover - Public Schools 36R Bartlet Street Andover, MA 01810 Dear Ms. Kieser: I have received the petition of Jeanne Teichert appealing the response of the 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, on January 14, 2019, Ms. Teichert requested" ... all additional public records relating to any and all requests for Special Education Parent Advisory Council (SEPAC) waivers from [the School] from January 2014 to present." Ms. Teichert noted that these records should " ... include all communications of emails, letters or any other form of communication between and among [the School] representatives, including elected (such as School Committee members) or volunteer representatives, paid APS staff, parents, and Department of Elementary and Secondary Education (DESE) representatives relating to the SEP AC waivers or to any other SEP AC issues related in any way to waiver requests. Please include full documentation of all requests for the waivers in any form, all supporting documents, and all full responses from DESE." This request was the subject of a previous appeal. See SPRl 9/0439 Determination of the Supervisor of Records (March 8, 2019). I closed SPR19/0439 by ordering the School to provide Ms. Teichert with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Subsequently, the School provided another response dated March 21, 2019. Unsatisfied with the School's response, Ms. Teichert petitioned this office and this appeal, SPR19/0639, was opened as a result. 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

Nicole L. Kieser SPR19/0639 Page 2 April 9, 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, § 1O (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, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity ofrequestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 3 71 Mass. 59, 64 (1976). Accordingly, Ms. Teichert's purpose in making the request has no bearing on the public status of any existing responsive records. The School's March 21st response; basis for redaction ofp rovided records In my March 8th determination, I found that with respect to the previously provided responsive records, the School had not met its burden of specificity in responding to the request to permit redaction. Specifically, the School had not identified which exemptions under the Public Records Law it is claiming apply to the redacted portions. See SPR19/0439. In the School's March 21st response, it indicates that the redacted portions include "names of parents of students within the District, and therefore properly redacted to protect the family's privacy." The School identifies the Family Educational Rights and Privacy Act (FERP A) as its basis for redaction explaining that "[t]he requested emails contain student names and other identifiers, including information that, alone or in combination, is linked or linkable to a specific student as well as sufficient information which makes a student's identity and disability easily traceable within a school community." See 20 U.S.C. § 1232g; 34 C.F.R 99.3. The Schools additionally cites to the Champa case indicating that the court "ruled that this information is covered, in addition, by 'exemption (c)."' See Champa v. Weston Public Schools, 473 Mass. 86, 96-98 (2015); G. L. c. 4, § 7(26)(c). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Nicole L. Kieser SPR19/0639 Page 3 April 9, 2019 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, 3 77 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. "Education records" under FERP A are defined as: those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution 20 U.S.C. § 1232g(a)(4). FERP A defines "personally identifiable information" as including, but not limited to: (a) The student's name; (b) The name of the student's parents or other family member; ( c) The address of the student or student's family; ( d) A personal identifier, such as the student's social security number, student number, or biometric record; ( e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name; (f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the community, who does not have personal knowledge of I the relevant circumstances, to identify the student with reasonable certainty; or (g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates 34 C.F.R. 99.3.

Nicole L. Kieser SPRI9/0639 Page 4 April 9, 2019 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). Exemption ( c) ,contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption ( c) is applicable to this determination. 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, 477 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. Burden ofs pecificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific

Nicole L. Kieser SPR19/0639 Page 5 April 9, 2019 exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. With respect to Exemption (a) and FERPA, although the School claims that "[t]he requested emails contain student names and other identifiers, including information that, alone or in combination, is linked or linkable to a specific student as well as sufficient information which makes a student's identity and disability easily traceable within a school community," the School has not established that the emails constitute "education records" under FERPA . With respect to Exemption ( c) , although the School indicates that the Champa Court "ruled that this information is covered ... by 'exemption (c),"' the response did not provide any further explanation as to the exemption's applicability to the redacted portions of the responsive records. A records custodian is required to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. As such, it remains unclear how Exemption (a), FERPA and Exemption (c) apply to the redacted portions. The School must clarify this matter. The School's March 2J5t response;fee estimate In my March 81 h determination, I found that, with respect to the fee estimate, the School had not provided sufficient information to show how the redactions are required by law and that it was uncertain why 3 minutes is required for each email record. I found the School must clarify the contents of these email records and indicate if these email records have attachments. See SPRl 9/0439. In its March 21st response, the School indicates that with respect to Ms. Teichert's request for " ... all communications of emails, letters or any other form of communication between and among [School] representatives, including elected (such as School Committee members) or volunteer representatives, paid APS staff, parents, and Department of Elementary and Secondary Education (DESE) representatives" related to "SEPA C" for the time period of January 1, 2019 to January 25, 2019, the School identified 209 "matches." The School's fee estimate includes a total fee of $212.50 for 10.5 hours spent, "approximately 3 minutes per record," to search, compile, review and redact the records at the rate of $25.00 subtracting the first 2 hours. The School indicates that "'Redaction Time' is time spent making redactions required by law to preserve student, employee and attorney client confidentiality." A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(d)(i). Municipalities may not assess a fee for the first 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality

Nicole L. Kieser SPR19/0639 Page 6 April 9, 2019 has 20,000 people or less. G. L. c. 66, § 10( d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). With respect to the hourly rate, the School explains that " ... employees working in an administrative or clerical position are not capable of segregating the requested invoices, as they lack a comprehensive understanding of the privilege and student privacy laws which is required for proper redaction. The District's legal counsel, Assistant Superintendent of Student Services and Records Access Officer are the only agents of the District who possesses [sic] the knowledge and ability necessary to segregate the invoices given the nature of the exempt information." The School asserts that "[t]he Records Access Officer is the lowest paid employee capable of performing this task. The RAO's hourly rate equates to $43.26 per hour. The estimate of $25.00 is well below this rate, and a reasonable estimate of the work, which includes emails and their attachments ... " As such, I find the School is permitted to charge at a rate of $25.00. The School identifies the Family Educational Rights and Privacy Act (FERP A), Exemptions (a) and (c) of the Public Records Law and the common law attorney-client privilege as its basis redaction. The School is advised that although Exemption ( c) permits redaction of certain information that constitutes an invasion of privacy, it does not require it by law. See G. L. c. 4, § 7(26)(c). Consequently, the School is not permitted to charge to redact information under Exemption (c). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). With respect to redactions made under FERPA , as described above, the School has not established that the records constitute "education records" and therefore how the redacted portions constitute "personally identifiable information." See 20 U.S.C. § 1232g(a)(4 ); 34 C.F.R. 99.3. With respect to its common law attorney-client privilege claim, the School did not provide any further information demonstrating how the privilege applies to the responsive records. The School must provide another response to Ms. Teichert revising its fee or, in the alternative, explaining how its current fee is in compliance with the Public Records Law. Additional responsive records 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, § lO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency").

Nicole L. Kieser SPR19/0639 Page 7 April 9, 2019 In Ms. Teichert's petition for appeal, she asserts that "the [S]chool should also forward [her] all of the SEP AC waiver records [she] originally requested prior to [her] modification of dates for [her] request, as the modification was agreed to only due to the exorbitant fee estimate from the School." Additionally, she indicates that"[o ]ne attachment which was referenced in the records but which has not been disclosed, and which [s he has] already specifically requested, was the agenda from the October 25, 2018 meeting ... " This office encourages the School and Ms. Teichert to communicate further to address and resolve these particular issues raised in_ Ms. Teichert's petition for appeal. Order Accordingly, the School is ordered to provide Ms. Teichert with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeanne Teichert