Chrissy Ryan v. Amherst-Pelham Regional School Districts (SPR 20192501)

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

Rebecca S. Murray Supervisor of Records

January 2, 2020 SPR19/2501

Debbie Westmoreland

Amherst-Pelham Regional School District 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 (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, on November 18, 2019, Ms. Ryan requested a “{clopy of the warrants document presented by [an identified individual] to SC and RSC for the last 6 months (most recent and/or Oct, Sept, Aug, June, May) to be signed” and “[a]mount of hours billed, explanation of services and amount paid to all lawyers for the District including but not limited to [two identified individuals] in the last 5 months (May 1) to present[.]” The District responded on December 4, 2019, providing responsive records in redacted form pursuant to Exemptions (a), (c), and (d) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (d). Unsatisfied with the District’s response, Ms. Ryan petitioned this office and this appeal, SPR19/2501, 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, § 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).

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.

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 SPR19/2501 Page 2 January 2, 2020

If there are any fees associated with a response a written, good faith estimate must be provided. G, L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

The District’s December 4" response

. In its December 4, 2019 response, the District provided responsive records but claimed the following exemptions to redact portions of the responsive records.

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 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.

Under Exemption (a), the District states that “[r]edactions within the bills of the firm of Murphy, Hesse, Toomey and Lehane were made pursuant to [Exemption (a)] which exempts information which is specifically exempted from disclosure by statute; the statute here is FERPA which prohibits the disclosure of personally identifying information [(PID)] of students.” The District explains that this exemption applies “. . . to the extent that some of the records reveal the identity of an individual who received special education services. In this regard, failing to redact the individual’s name would compromise the District’s obligations under the Family Educational Rights and Privacy Act and the State Student Records regulations, 603 CMR 23.00, et seq. . . . The redactions include the names of the students and the name of a placement attended by the student.”

Debbie Westmoreland SPR19/2501 Page 3 January 2, 2020

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. ¢. 4, § 7(26)(c). Second clause of Exemption (c) — privacy

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. vy. 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.

Under Exemption (c), the District states that “[f]or the same reason, [as explained under Exemption (a),] exemption (c), which protects the privacy of individuals, applies.”

Based on the District’s response, I find that it has met its burden to redact student PII pursuant to FERPA, as it operates through Exemption (a), as well as Exemption (c) of the Public

Debbie Westmoreland . ~ §PR19/2501 Page 4 January 2, 2020

Records Law. Exemption (d) Exemption (d) allows the withholding of:

inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based

G. L. c. 4, § 7(26)(d).

Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of: government policy are subject to disclosure).

Under Exemption (d), the District states that “[t]he litigation-related narratives that have been redacted reflect upon the District’s litigation strategy. Although the litigation has since been withdrawn by the plaintiff, he has demonstrated an ongoing interest in continuing the litigation. As such, the strategies reflected by these narratives remain relevant. Accordingly, the disclosure of such information could reasonably impact the District’s litigating position. They are, therefore, exempt from disclosure under exemption (d).”

In camera review

In order to facilitate a determination as to the applicability of the Exemption (d) claim made by the District to redact certain information, the District must provide this office with un- redacted copies of a representative sample of the responsive records for in camera inspection. See 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, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (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.

Debbie Westmoreland SPR19/2501 Page 5 January 2, 2020

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. See 950 C.M.R. 32.08(4)(c).

This office has a long history of cooperation with governmental agencies with respect to _ incamera 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.

Order

The District must provide this office an un-redacted copy of a representative sample of the responsive records for in camera inspection without delay.

Lense

Llecea S. Murray a

_ Supervisor of Records

ce: Chrissy Ryan