Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20210071)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 26, 2021 SPR21/0071 John R. Hucksam Jr., Esq. City of Lowell – Law Department 375 Merrimack Street 3rd Floor Lowell, MA 01852 Dear Attorney Hucksam: I have received the petition of Laura Ortiz appealing the response of the City of Lowell (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On two separate occasions, June 1, 2019 and October 2, 2019, Ms. Ortiz requested records related to the EOY report for the 2018-2019 school year and Building Staff Profiles with information regarding school nurses for each City school. Previous Appeals This request is the subject of previous appeals. See SPR20/0155 Determination of the Supervisor of Records (February 11, 2020); SPR19/2133 Determination of the Supervisor of Records (October 31, 2019); SPR20/0285 Determination of the Supervisor of Records (February 28, 2020). I found in my February 28th determination the City intended on providing a supplemental response. The City provided said response on February 28, 2020, which included responsive records. On January 9, 2021, the City provided the record in the requested format, redacted pursuant to Exemption (c). Unsatisfied with the City’s response, Ms. Ortiz petitioned this office, and appeal SPR21/0071 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

John R. Hucksam, Jr., Esq. SPR21/0071 Page 2 January 26, 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); 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. Current Appeal In a response sent on December 23, 2020, the City states “[w]e believe that these redactions are authorized pursuant to the first clause of Exemption (c), the privacy exemption, since they concern medical files or information relating to individuals which, although not specifically named, could be identified in schools where less than five students had one or more of the listed medical conditions.” The City explains “[t]his redacted copy of the EOY report was an attempt to honor an understanding of this office with Ms. Ortiz regarding respecting the privacy rights of individual students with medical conditions listed in the EOY report. That understanding, as I understand it, was that a school’s name would be redacted where there were less than five students at that school with a medical condition listed in the EOY report. This was intended to address the possibility that individual students with one or more of the listed medical conditions could be identified where there were less than five students at a school with a listed medical condition. Each of the schools had less than five students with at least one of the listed medical conditions, therefore each of the schools’ names were redacted.” Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under 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 exemption 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

John R. Hucksam, Jr., Esq. SPR21/0071 Page 3 January 26, 2021 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 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 exemption 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. The City has not met its burden to redact the school pursuant to Exemption (c). Based on the City’s response, it is unclear how the redacted school name constitutes data relating to a specifically named individual. Although the City states they believe redactions fall under Exemption (c) where “individuals which, although not specifically named, could be identified in schools where less than five students had one or more of the listed medical conditions,” the City has not sufficiently explained their reasoning. The City must clarify this matter. Preferred Format A records access officer shall, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requesters preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In her appeal, Ms. Ortiz contends “…the City of Lowell clearly refuses to furnish the EOY record requested we believe and the substituting different public records (ESHS for the EOY when they are two different public records) as well as the redaction that the City of Lowell is doing is without merit when we had already appealed on excessive redaction over removing the individual schools name and not redacting individual column/box data on 5 (but not including 5) to protect the identity of students and once again in the same pdf copy that they knew was not what electronic format requested and challenged the ESHS substituting.” Ms. Ortiz claims “[t]he City of Lowell is Refusing to provide this Public Record in the Format it exists on purpose as an EXCEL Spreadsheet that was Provided WITHOUT Objection Historically they are responding with a created copy of NEW EXCEL Record entirely.” In light of Ms. Ortiz’s appeal, I find the City must clarify if the record provided is the EOY excel record, and not a new excel record.

John R. Hucksam, Jr., Esq. SPR21/0071 Page 4 January 26, 2021 Conclusion Accordingly, the City is ordered to provide Ms. Ortiz with said response within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Ortiz may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Ortiz