Jeanne Teichert v. Andover, Town of - Public Schools (SPR 20190854)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 13, 2019 SPR19/0854 Nicole L. Kieser Town of Andover-Public Schools 3 6R 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/District) to a request for public records. G. L. c. 66, § lOA; 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 SEPA C 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." Previous appeals This request was the subject of a two previous appeals. See SPR19/0639 Determination of the Supervisor of Records (April 9, 2019); SPR19/0439 Determination of the Supervisor of Records (March 8, 2019). I closed SPR19/0639 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 April 26, 2019. Unsatisfied with the School's response, Ms. Teichert petitioned this office and this appeal, SPRl 9/0854, 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, § IOA(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

Nicole L. Kieser SPR19/0854 Page 2 May 13, 2019 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, § 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, § 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 April 26, 2019 response In its April 26th response, the School claims the second clause of Exemption (c ) applies to withhold the redacted portions of "the sign-in sheet." The School indicates that it has redacted "the names and email addresses of Andover parents of students with disabilities." The School asserts that Ms. Teichert's "right to request a copy of the unredacted sign-in sheet does not outweigh the privacy rights of the signatories, all of whom are parents of children with disabilities receiving special education. Disclosure of the parents' names would necessarily disclose their children's status as students with disabilities." While this appeal was pending, the School provided another response on May 13, 2019 addressing the records previously provided to Ms. Teichert. The School explains that "the redactions of documents previously provided to [Ms. Teichert] in response to [her] January 2019 request, identify parents. The District declines to provide [Ms. Teichert] with their names based on the privacy exemption (M.G.L. c. 4, §7(26)(c)) for the same reasons explained to you in detail in the District's prior response of April 26, 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

Nicole L. Kieser SPR19/0854 Page 3 May 13, 2019 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. With respect to the factors to consider when assessing the weight of the privacy interests at stake under Exemption (c) and PETA, in its April 26th response the School explains that "[t]he prongs laid out in PETA, as applied to these facts, clearly demonstrate the substantial privacy interest at stake for each individual on the attendance sheet. Specifically: (1) Disclosure of the information sought may cause the parents ( and their children) to be embarrassed by their status as parents of children with disabilities receiving special education. Unfortunately, parents and children may feel stigmatized in the community and disclosure of the requested information deprives the parents (and children) of their right to determine whether to disclose this information; (2) The information sought is of a highly personal nature because it discloses the children's status as disabled and receiving special education; and (3) The "sign-in sheet" was, in fact, provided. The redacted information sought is precluded from disclosure because federal and state law prohibit the District from disclosing the identities of parents of children with disabilities to the public absent informed parental consent." With respect to the balancing test set out in PETA, the School explains that "[b]y not

Nicole L. Kieser SPR19/0854 Page4 May 13, 2019 receiving the sign-in sheet, the harm unto [Ms. Teichert] is simply not obtaining direct knowledge of who attended a particular meeting. However, the risk to the individuals identified on the sign-in sheet is the disclosure of their names, their email addresses, their status as the parents of children with disabilities, and their children's status as children with disabilities who receive special education." The School further explains that due to the nature of the request "there is much more at risk than simply disclosing an adult's private information. By disclosing the names and email addresses of the adults on the sign-in sheet, the District would be providing [Ms. Teichert] with a list of parents who have children with disabilities receiving special education and violating the confidentiality and privacy rights of these parents and their children in doing so." In Ms. Teichert's previous petitions for appeal, she has alleged that an unredacted copy of the sign-in sheet has previously been provided to another requestor. She posits that this undermines the School's privacy arguments in support of withholding the redacted information. Despite the redacted information potentially having been previously provided, under the balancing test set out in PETA , I find the School has established that the public interest in obtaining the parents' names and emails addresses on the sign-in sheet and within the previously provided responsive records does not substantially outweigh the seriousness of the invasion of privacy. PETA, 4 77 Mass. at 291. As such, I find that the School has met its burden of specificity in responding to this request and is permitted to withhold this information under the second clause of Exemption (c). See G. L. c. 66, § lO(b)(iv). Fee estimate; 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 ofrecords at the time of the request. See G. L. c. 66, § IO(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"). 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. Once fees are paid, a records custodian must provide the responsive records. In its May 13th response, the School indicates that it has previously provided Ms. Teichert with "the documentation of the District's Alternative Compliance Waiver approved by the Department of Elementary and Secondary Education." Additionally, the School indicates that "there are no other documents responsive to [Ms. Teichert's] January 2019 records request or subsequent appeals in the possession of the Andover Public Schools." Further, the School confirms it is waiving its fee. Whereas, the School has indicated it is not charging Ms. Teichert a fee, and confirms it has previously provided her with particular documents and it does not possess any additional responsive records, I will consider those issues within the appeal resolved.

Nicole L. Kieser SPR19/0854 Page 5 May 13, 2019 Conclusion Accordingly, I find the School has met its burden in responding to this request. See G. L. c. 66, § lO(a)(i-ii). I will now consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Jeanne Teichert