Amy Friedman v. Malden City Clerk's Office (SPR 20201012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 10, 2020 SPR20/1012 Salima Slimane President Malden SEPAC 77 Salem Street, Room H104 Malden, MA 02148 Dear Ms. Slimane: I have received the petition of Bruce Friedman appealing the response of the Malden SEPAC (the Council) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Friedman requested “any and all electronic communications…in your control and possession for the time period of March 1, 2020 and the date you answer this request between the Malden SEPAC….and [employees of Malden Public Schools].” The Public Records Law The Public Records Law applies to all records ...made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32… G.L. c. 4 § 7(26). The Public Records Law, therefore, applies to public entities, and does not apply to private entities who are not engaged in an agency or contractual relationship with a public entity. The Malden SEPAC’s Status The Supreme Judicial Court has developed a five factor test to determine whether an 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

Salima Slimane SPR20/1012 Page 2 July 10, 2020 organization is considered a “public entity” for purposes of the Public Records Law. See Massachusetts Bay Trasnp. Auth. Retirement Bd. v. State Ethics Comm’n (Board I), 414 Mass. 582, 589-91 (1993) (outlining the five-factor test); see also Globe Newspaper Co. v. --------------------- Massachusetts Bay Transp. Auth. Retirement Bd. (Board II), 416 Mass. 1007, 1007 (1993) (applying the test in the context of the Public Records Law). The five factors are as follows: 1) the means by which the entity was created; 2) whether or not the entity performs an essentially government function; 3) whether or not the entity receives or expends public funds; 4) the involvement of private interest; and 5) the extent of control or supervision exercised by government officials, agencies, or authorities over the entity. Board I at 587. The five factors of this test are cumulative, and no one factor is dispositive. Id. Creation of the Entity The first factor considered in this analysis is the means by which the entity was created. See Board I at 590. This factor requires the presence of some form of legislative or administrative action underpinning the creation of the entity. Board I at 587, 589. M. G. L. c. 71B, §3 provides, in pertinent part: The school committee of any city, town, or school district shall establish a parent advisory council on special education. Membership shall be offered to all parents of children with disabilities and other interested parties. The parent advisory council duties shall include but not be limited to advising the school committee on matters that pertain to the education and safety of students with disabilities; meeting regularly with school officials to participate in the planning, development, and evaluation of the school committee's special education programs. The parent advisory council shall establish by-laws regarding officers and operational procedures. In the course of its duties under this section, the parent advisory council shall receive assistance from the school committee without charge, upon reasonable notice, and subject to the availability of staff and resources. As a result, an analysis of this factor strongly favors a determination that the Council is a public entity. Performance of an Essentially Governmental Function The second factor in this analysis concerns whether the Council performs an essentially governmental function. See Board I at 590. Essential governmental functions are those powers

Salima Slimane SPR20/1012 Page 3 July 10, 2020 that have been “traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison, 419 U.S. 345, 352 (1974). The bylaws adopted by the Council state that its “primary commitment is that of enhancing the parental/guardian voice in public education in the city of Malden.” As noted above, G. L. c. 71B, § 3 provides for the creation of parent advisory councils to advise school committees on matters related to special education. Where the function of the Council is to assist and advise the school committee in its mission to provide public education, this factor weighs in favor of a finding that the Council is a public entity. Receipt and Expenditure of Public Funds The third factor examines whether the entity receives or expends public funds. Although this office does not have specific information regarding the Council’s funding, G. L. c. 71B, §3 provides that a parent advisory council “shall receive assistance from the school committee without charge….” The fact that the Council receives a part of its funding from governmental funds weighs towards a finding that it is a public entity. However, the Supreme Judicial Court has stated that “receipt by an entity of substantial funding from a State agency does not necessarily indicate that the entity is a public instrumentality.” Board I at 590. Thus, this factor alone is not dispositive. Involvement of Private Interests; Control and Supervision The final two factors in this analysis relate to the extent of any involvement, control, or supervision exercised by governmental officials. The Council members hold their positions as private citizens and parents, not as government employees. However, given that the Council is established by statute to provide advice to the school committee, it appears that the committee exercises some level of control over the Council. The Supreme Judicial Court has stated that the five factors of the public entity test are to be balanced, and no one factor is dispositive. Board I at 587. On balance, the fact that the Council was established by the school committee pursuant to statute indicates that it is a public entity. Additionally, the Council’s stated purpose is to provide advice to the school committee regarding public education. Therefore, the analysis of these factors favors a consideration that the Council is a public entity subject to the Public Records Law. The Council’s Response to Mr. Friedman’s Request The Council responded to Mr. Friedman on June 25, 2020, providing responsive records with redactions.

Salima Slimane SPR20/1012 Page 4 July 10, 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. c. 4, § 7(26)(c). 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 (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; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 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. In its response, the Council indicates that it has redacted the names of students who receive special education services and the names of parents of those students. Such information is of the type that the privacy clause is designed to protect. I find that the public interest in disclosure of these names does not outweigh the privacy interest held by these individuals. Therefore, I find that the Council may permissibly redact these names from the responsive records.

Salima Slimane SPR20/1012 Page 5 July 10, 2020 Conclusion Accordingly, whereas I find the Council may permissibly redact the records pursuant to the privacy clause of Exemption (c), I will consider this administrative appeal closed. If Mr. Friedman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Bruce Friedman