Joseph Smith v. North Adams, City of (SPR 20202386)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 16, 2020 SPR20/2386 Jessica Lincourt Records Access Officer City of North Adams 10 Main Street North Adams, MA 01247 Dear Ms. Lincourt: I have received the petition of Joseph Smith appealing the response of the City of North Adams (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 16, 2020, Mr. Smith requested “[a]ny email or otherwise written communication from the North Adams Public Schools administration to any city employee, administration member, or elected official which reveals/names the school within NAPS that had the reported student COVID-19 case which was revealed to the media on 10/08/20... all I ask to fulfill this request is the first communication you find that names the school which had the infection that was reported to the media on the 8th. I would suspect this should be easily found from a city health department email address, such as hdemarsico@northadams-ma.gov.” Previous appeal This request has been the subject of a previous appeal. See SPR20/2137 Determination of the Supervisor of Records (November 18, 2020). In my November 18th determination, I found the City had not met its burden in responding to Mr. Smith’s request. The City was ordered to provide Mr. Smith with a response to his request, in a manner consistent with this order, the Public Records Law and its Regulations. The City provided this response on December 1, 2020. Unsatisfied with the City’s response, Mr. Adams petitioned this office and this appeal, SPR20/2386, 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). 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

Jessica Lincourt SPR20/2386 Page 2 December 16, 2020 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. The City’s December 1st response In its December 1st response, the City states “[a]fter diligent search, I can confirm that I have provided all the records responsive to your request in the possession of the North Adams School Department or any other City department, including the Health Department. As to your request that the names of the involved schools be released, the redactions have been made to protect personal medical records. The redacted information readily leads to the identity of individual students….I understand that having the initial response to your request come from the North Adams school district may have created unintended confusion, however the city solicitor has affirmed that the record itself need not come directly from the Records Access Officer (RAO) in order to fulfill a request.” In the initial response on October 21, 2020, provided by the North Adams School District (District), the District provided the requested records stating “[i]t is the District’s contention that said sections are exempted from release pursuant to M.G.L. c. 4, § 7(26)(c)…as well as M.G.L. c. 4, § 7(26)(a)…as the information is protected by the Family Educational Rights and Privacy Act (FERPA) and the Massachusetts Students Records Law and Regulations.” In his appeal Mr. Smith contends “[s]ince this infection the district and city have subsequently named the school in all infections since, of which there have been multiple. To state it only applies to one instance but not others defies reason. Additionally, DESE considers this information public and requires a report be made to them including this information, which the district neglected to do.” 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).

Jessica Lincourt SPR20/2386 Page 3 December 16, 2020 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. "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. 5 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; (f) 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. The City has not met its burden to redact the school name under FERPA pursuant to Exemption (a). Based on the City’s response, it is unclear how the redacted school name constitutes FERPA information. Although the City states the “information readily leads to the identity of individual students,” the City has not sufficiently explained their reasoning. The City must clarify this matter. Exemption (c) Exemption (c) applies to:

Jessica Lincourt SPR20/2386 Page 4 December 16, 2020 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 Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). 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. Based on the City’s response, it is unclear how the redacted school name constitutes medical information. The City has not met its burden to redact the responsive records under Exemption (c). Conclusion Accordingly the City is ordered to provide Mr. Smith with a response to his request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. 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.

Jessica Lincourt SPR20/2386 Page 5 December 16, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph Smith