Matthew Campbell v. Department of Elementary and Secondary Education (SPR 20200586)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 7, 2020 SPR20/0586 Helene Bettencourt Associate Commissioner Primary Records Officer Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt, I have received correspondence from Attorney Matthew Campbell, on behalf of the Mystic Valley Regional Charter School (School), appealing the response of the Depaiiment of Elementary and Secondary Education (DESE) to a request for public records. G. L. c. 66, § 1O (A); 950 C.M.R. 32.08(1 ). Specifically, on January 14, 2020, the School requested, "[a]ll student-level SAT results (Reading/Writing and Math subscores) for the last three school yeai·s (2017-2018, 2018-2019, and 2019-2020), student names and any identifying data points redacted, for the following school districts: Everett, Malden, Medford, Melrose, Stoneham and Wakefield." 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 records" is broadly defined to include all documentary materials or data, regardless of physical f01m or chai·acteristics, 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, § 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 exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); 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). 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

Ms. Helene Bettencourt SPR20/0586 Page2 April 7, 2020 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. DESE's February 191 response " DESE responded on February 19th and denied access to responsive records pursuant to Exemption (a) and (c) of the Public Records Law. Unsatisfied with the result, Attorney Campbell petitioned this office and this appeal, SPR20/0586, was opened as a result. 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. In its February 19th response, DESE denied the School's request under the federal Family Educational Right Privacy Act (FERPA), 20 U.S.C. §1232(g); 34 C.F.R. § 99 and stated ... "this record is exempt under the statutory exemption to the public records law, G.L. c. 4 §7(26)(a)." 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

Ms. Helene Bettencourt SPR20/0586 Page 3 April 7, 2020 20 U.S.C. § 1232g(a)(4 )(i-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; (t) 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 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. DESE asserted, "[a]lthough [the School] requested that student names and 'identifying data points' be redacted from this data, this step alone does not protect against disclosure of personally identifiable information [PII] about students. . .. production of de-identified student level SAT scores risks unauthorized disclosures that would violate FERPA ." DESE further asserted, "[u]nder FERPA, the parent or eligible student shall provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student's education records, except as provided in §99.31 ... included in the definition of personally identifiable information is other information that alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty." 34 C.F.R. §99.3 Although DESE states disclosure of student's SAT Scores is exempt under FERPA as it constitutes PII, it remains unclear how releasing the requested data would be identifiable to a particular student, especially in light of the fact that the School has requested that student names and identifying data points be redacted from this information. DESE needs to clarify this issue. 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).

Ms. Helene Bettencourt SPR20/0586 Page 4 April7,2020 Second clause ofE xemption (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. 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. Under Exemption (c), DESE states that "[f]or the same reason, as explained under Exemption (a), Exemption (c), which protects the privacy of individuals, applies." DESE fmiher applied the two-step analysis as set out in PETA. DESE asserts in part that the student SAT scores constitute an intimate detail of a highly personal nature and disclosure would not serve a public purpose. Upon review of DESE's response, it remains unclear how the information constitutes intimate details of a highly personal nature, or how disclosure of the information is the type of information the second clause of Exemption ( c) is designed to protect in the manner described in PETA or how redacted PII would present an invasion of privacy identifiable to a paiiicular student. I encourage Attorney Campbell and DESE to communicate further in order to facilitate producing records efficiently and affordably. Attorney Campbell may wish to include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § IO(a)(i). DESE must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, §

Ms. Helene Bettencourt SPR20/0586 Page 5 April 7, 2020 lO(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, DESE is ordered to provide a response to Mr. Campbell in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Matthew Campbell, Esq.