Chrissy Ryan v. Amherst Regional Public Schools (SPR 20192480)

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

Rebecca S. Murray Supervisor of Records

December 31, 2019 SPR19/2480

Debbie Westmoreland

Amherst-Pelham Regional School District Town of Amherst

170 Chestnut Street

Amherst, MA 01002

Dear Ms. Westmoreland:

I have received the petition of Chrissy Ryan appealing the response of the Amherst- Pelham Regional School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Ryan requested “Emails between Superintendent Mike Morris and Amherst School Committee Chair Anastasia Ordonez and emails between Superintendent Mike Morris and Town Manager Paul Bockelman and emails between Amherst Public Schools Finance Director Sean Mangano and Town Manager Paul Bockelman.”

Previous Appeals

This request was the subject of previous appeals. See SPR19/1885 Determination of the

_ Supervisor of Records (September 26, 2019); SPR 19/2138 Determination of the Supervisor of Records (October 20, 2019). In my October 30" determination I found that the School had met its burden in its October 9"" response to establish it may assess time for segregating and redacting the records because these redactions are required by law. See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Ms. Ryan is now contesting the School’s October 9" response on the basis that “{t]here is no need to be discussing students or faculty...between the Town Manager and Finance Manager and superintendent.”

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 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

Debbie Westmoreland SPR19/2480 Page 2 December 31, 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, § 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.

Current Appeal

In its October 3" response, the School indicates for both requests “the district provided a good faith estimate... based on the need to review and redact responsive records per the Family Educational and Privacy Rights Acts and its regulations, 34 C.F.R. § 99.1, et seq.; M.G.L. c. 71, Section 34D and its regulations, 603 C.M.R. 23.07; and the personnel records statute, G.L. c. 149, Section 52C. Based on the aforementioned provisions, the disclosure of any record that qualifies as an educational/student record...is specifically exempted from disclosure by statute. Exemption (a), therefore applies. Similarly, as non-disclosure under the above provisions is specifically required to preserve students’ privacy interests, the privacy clause of exemption (c) also applies...”

The School explains for request 1 “[a]s Chair of the Amherst School Committee, Ms. Ordonez’s and Dr, Morris’ correspondence sometimes deals with student related and staff-related matters.” The School also explains request 2, “[a]s a Department of the Town of Amherst, school officials have occasion to correspond with Town Manager Bockelman regarding student-related . and staff-related matters.” Therefore, the School states “[e]ach email must be reviewed to ensure

such information is properly redacted prior to release.”

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).

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

Debbie Westmoreland SPR19/2480 Page 3 December 31, 2019

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 provides in relevant part: “Education records” under FERPA 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)(1-ii). FERPA 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 allowa reasonable person in the community, who does not have personal knowledge of 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,

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, 432-434 (1983). The

Debbie Westmoreland SPR19/2480 Page 4 December 31, 2019

first clause, creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434.

Second clause of Exemption (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, Inc. (PETA) v. Department of Agricultural Resources, 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, 428 (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. .

Based on the School’s response and my previous determination in SPR19/2138, I find the the School has met its burden to establish the need to review and redact these records pursuant to the Family Education and Privacy Rights Act, as it operates through Exemption (a), as well as redact information under Exemption (c).

Conclusion

Based on the School’s response and my previous determination in SPR19/2138, I find the the School has met its burden to establish the need to review and redact these records pursuant to the Family Education and Privacy Rights Act, as it operates through Exemption (a), as well as redact information under Exemption (c). To the extent the responsive records contain the _ information required by law to redact, as described above, the School may assess a fee for segregation and redaction. I will now consider this administrative appeal closed.

Debbie Westmoreland . SPR19/2480 Page 5 December 31, 2019

Sincerely,

Rebecca S. Qboren Murray

ray Supervisor of Records

ce: Chrissy Ryan