Daralyn Heywood v. Massachusetts Maritime Academy (SPR 20212953)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 19, 2021 SPR21/2953 Elizabeth C. Benway Dean of Human Resources and Equal Opportunity & Diversity Records Access Officer Massachusetts Maritime Academy 101 Academy Drive Buzzards Bay, MA 02532 Dear Dean Benway: I have received the petition of Daralyn Heywood of MuckRock News appealing the response of the Massachusetts Maritime Academy (Academy) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 20, 2021, Ms. Heywood requested records of “no trespass issued in 2020 and 2021, reason for no trespass orders issued, Massachusetts Maritime policy for no trespass orders, policy for means of service for no trespass orders, emails memos received by Chief Chris Slattery that contain requests for no trespass orders to be issued, no trespass orders are an administrative procedure and not governed by CH 66.” The Academy had provided a response on October 7, 2021. Unsatisfied with the Academy’s response, Ms. Heywood petitioned this office and this appeal, SPR21/2953, 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); 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. 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

Elizabeth C. Benway, RAO SPR21/2953 Page 2 November 19, 2021 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Academy’s October 7th Response In its October 7, 2021 response, the Academy cited Exemptions (a) and (c) for the withholding of records. 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. FERPA The Family Educational Rights and Privacy Act (FERPA) is a federal statute and provides in pertinent part: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than to the following . . .

Elizabeth C. Benway, RAO SPR21/2953 Page 3 November 19, 2021 20 U.S.C. § 1232g(b)(1). The statute goes on to list seven categories of individuals, agencies, and organizations to which “education records” may be released. In addition, FERPA provides the following limitation on the definition of “education records”: The term “education records” does not include— . . . records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement. 20 U.S.C. § 1232g(a)(4)(B)(ii). In the October 7th response, the Academy cited Exemption (a) for withholding records of no trespass issued in 2020 and 2021. The Academy explained it was “withholding production of the No Trespass Order issued to the student. MMA relies upon Mass. Gen. Laws ch. 4, § 7(26)(a) which exempts from disclosure requested material exempted by necessary implication of a separate statute. In this instance, the Family Educational Rights and Privacy Act of 1974 (‘FERPA’), 20 U.S.C. § 1232g, exempts the student's No Trespass Order from disclosure. The student's No Trespass Order is protected by FERPA because it is an education record; it is recorded information maintained by MMA, it is directly related to the student, and it contains personally identifiable information (the student's name and address). See 34 CFR § 99.3.” -- The Academy also cited Exemption (a) for withholding records regarding reason for no trespass orders issued. The Academy stated, “MMA is withholding the documents, a police report including a cover sheet, field interview report, narrative, incident report, narrative, and supplemental narrative provided to MMA, that records the reason why MMA filed and issued a No Trespass Order to a student. MMA relies upon Mass. Gen. Laws ch. 4, § 7(26)(a) which exempts from disclosure requested material exempted by necessary implication of a separate statute. In this instance, MMA relies on FERPA for its decision to withhold the documents.” In addition, the Academy further stated, “MMA is withholding an email thread that records the reason why MMA filed and issued a No Trespass Order to [individual]. MMA relies upon Mass. Gen. Laws ch. 4, § 7(26)(a) which exempts from disclosure requested material exempted by necessary implication of a separate statute” The Academy explained, “[t]he document contains information related to a student, and as a result transforms the document into an education record and exempted from disclosure by FERPA.” Based on the Academy’s October 7th response, it is unclear how responsive records constitute “education records” as defined under FERPA. The Academy must clarify this.

Elizabeth C. Benway, RAO SPR21/2953 Page 4 November 19, 2021 Exemption (c) Exemption (c) applies to: 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y 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 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. In the October 7, 2021 response, the Academy also cited Exemption (c) for “withholding an email thread that records the reason why MMA filed and issued a No Trespass Order to [individual]” pertaining to unwarranted invasion of personal privacy. The Academy explained the email thread contains details about a student that are sensitive and highly personal in nature. Therefore, MMA withholds the document at this time to uphold its obligations to protect the student's personal privacy.” Based on the October 7th response, I find that the Academy did not satisfy its burden in withholding these records. It is uncertain whether any responsive information is available from other sources. PETA, 477 Mass. at 292. Also, the Academy must provide additional information with respect to the above balancing test which examines whether the public interest in obtaining

Elizabeth C. Benway, RAO SPR21/2953 Page 5 November 19, 2021 the requested information outweighs the seriousness of any invasion of privacy. The Academy must clarify this matter. Conclusion Accordingly, the Academy is ordered to provide Ms. Heywood 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: Daralyn Heywood; MuckRock News