Arthur G. Grenier v. Haverhill, City of - Public Schools (SPR 20210009)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 19, 2021 SPR21/0009 Michael Pfifferling Assistant Superintendent - Finance & Operations Haverhill Public Schools Four Summer Street, Room 104 Haverhill, MA 01830 Dear Assistant Superintendent Pfifferling: I have received the petition of Arthur Grenier appealing the response of the Haverhill Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 10, 2020, Mr. Grenier requested the following records: 1. Yearbooks for the last 3 years for the Consentino Middle School 2. Memorandum of agreement between the school department and the police department for School Resource Officers 3. Any written policies for School Personnel regarding Student Photographs and using these photographs as evidence and/or photo arrays for criminal investigations in identifying individuals. Prior Appeal The requested records were the subject of a prior determination. See SPR21/0005 Determination of the Supervisor of Records (January 5, 2021). In my January 5, 2021 determination, I learned that the School provided a supplemental response. Mr. Grenier appealed this response and SPR21/0009 was opened to address Mr. Grenier’s concerns. 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, § 10 A(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

Michael Pfifferling SPR21/0009 Page 2 January 19, 2021 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). The School’s January 4, 2021 response On January 4, 2021, the School provided a supplemental response which included requested items 2 and 3. The School did not provide the requested yearbooks, noting they are protected under Exemption (a) of the Public Records Law. 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.

Michael Pfifferling SPR21/0009 Page 3 January 19, 2021 In its response, the School referenced 603 C.M.R. 23.00, which states in pertinent part as follows: Except for the provisions of 603 CMR 23.07(4)(a) through 23.07(4)(h), no third party shall have access to information in or from a student record without the specific, informed written consent of the eligible student or the parent. When granting consent, the eligible student or parent shall have the right to designate which parts of the student record shall be released to the third party. 603 CMR 23.07(4). In its response, the School stated, “… any such yearbooks maintained by School Department are considered part of a student record pursuant to 603 CMR 23.00 - Student Records. Such records are not subject to disclosure to any third party without the execution of a proper authorization by the parent or legal guardian (or the student if they at 18 years of age). Thus, disclosure of these records is not permissible by law …” Pursuant to the Access to Student Records Regulations (Regulations), “student records:” …shall consist of the Transcript and the Temporary Record, including all information-- recording and computer tapes, microfilm, microfiche, or any other materials--regardless of physical form or characteristics concerning a student that is organized on the basis of the student's name or in a way that such student may be individually identified, and that is kept by the public schools of the Commonwealth. The term as used in 603 CMR 23.00 shall mean all such information and materials regardless of where they are located, except for the information and materials specifically exempted by 603 CMR 23.04. 603 C.M.R. 23.02. Transcript shall contain administrative records that constitute the minimum data necessary to reflect the student's educational progress and to operate the educational system. These data shall be limited to the name, address, and phone number of the student; his/her birth date; name, address, and phone number of the parent or guardian; course titles, grades (or the equivalent when grades are not applicable), course credit, highest grade level completed, and the year completed, and highest performance level achieved on all MCAS tests required for the competency determination. 603 C.M.R. 23.02. Temporary Record shall consist of all the information in the student record which is not contained in the transcript. This information clearly shall be of importance to the educational process. Such information may include standardized test results, class rank (when applicable), extracurricular activities, and evaluations by teachers, counselors, and other school staff.

Michael Pfifferling SPR21/0009 Page 4 January 19, 2021 603 C.M.R. 23.02. Further, under the Regulations a school: may release the following directory information: a student's name, address, telephone listing, date and place of birth, major field of study, dates of attendance, weight and height of members of athletic teams, class, participation in officially recognized activities and sports, degrees, honors and awards, and post-high school plans without the consent of the eligible student or parent; provided that the school gives public notice of the types of information it may release under 603 CMR 23.07 and allows eligible students and parents a reasonable time after such notice to request that this information not be released without the prior consent of the eligible student or parent. Such notice may be included in the routine information letter required under 603 CMR 23.10. 603 C.M.R. 23.07(4)(a). Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. - - - - v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The School did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). For example, it is not clear how all of the information contained in the requested yearbooks falls under the definition of a “student record.” The School must clarify this. Conclusion Accordingly, the School is ordered to provide Mr. Grenier with a response to the request, provided 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Arthur Grenier