Michael J. Long, Esq. v. Athol-Royalston Regional School District (SPR 20201149)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 23, 2020 SPR20/1149 Sheryl Femino Administrative Assistant Athol-Royalston Regional School District 1062 Pleasant Street Athol, MA 01331 Dear Ms. Femino: I have received the petition of Attorney Michael J. Long of Dupere Law Offices appealing the response of the Athol-Royalston Regional School District (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 15, 2020, Attorney Long requested a copy of all investigatory materials regarding an incident at a girls’ basketball game. Previous appeals This request was the subject of a previous appeal. See SPR20/1017 Determination of the Supervisor of Records (July 9, 2020). The District responded and unsatisfied with the response, Attorney Long petitioned this office and this appeal SPR20/1149 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) (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); 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). 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

Sheryl Femino SPR20/1149 Page 2 July 23, 2020 The District’s July 13th response In its July 13th response, the District cites the Family Educational Rights and Privacy Act (FERPA) under Exemption (a) and C.F.R. §§99.30, 99.31 and 602 CMR 23.07(4) as applicable to the requested records. The District asserts that “redactions of the record in this case may not actually conceal the identities of the students involved.” The District further states, “[t]he investigative report … involves the … Middle School Basketball Team …[which has] less than 20 students on this … team during the 2018-2019 school year … [and] it is already greatly apparent which students the investigation is concerning.” In camera inspection In order to facilitate a determination as to the applicability of the District's claims under Exemption (a) to withhold the records in their entirety, the District must provide this office with un-redacted copies of the responsive records for in camera inspection. 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. See 950 C.M.R. 32.08(4). 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. Massachusetts 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. 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 in camera 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. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the District is ordered to provide this office with an un-redacted copies of the responsive records for in camera inspection without delay.

Sheryl Femino SPR20/1149 Page 3 July 23, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael J. Long, Esq.