Gerry Mroz v. Department of Elementary and Secondary Education (SPR 20213039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2021 SPR21/3039 Helene Bettencourt Records Access Officer Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148-4906 Dear Ms. Bettencourt: I have received the petition of Gerry Mroz appealing the response of the Department of Elementary and Secondary Education (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 3, 2021, Mr. Mroz requested. “… dates of birth of each student enrolled in 2nd grade in Massachusetts public schools as of October 1, 2019 … together with their district name, school name, gender, and race/ethnicity.” Previous appeal This request was the subject of a previous appeal. See SPR21/2533 Determination of the Supervisor of Records (October 5, 2021); SPR21/2563 Determination of the Supervisor of Records (October 18, 2021). The Department had provided a response on October 21, 2021. Unsatisfied with the Department’s response, Mr. Mroz petitioned this office and this appeal, SPR21/3039, 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 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

Helene Bettencourt SPR21/3039 Page 2 December 2, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 Department’s October 21st Response On October 21, 2021, the Department provided Mr. Mroz with “an excel file that contains the DOB, Gender and Race for students in second grade as of October 1, 2020.” In Mr. Mroz’s appeal to this office, he stated that the response did not provide all of the public records requested. 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

Helene Bettencourt SPR21/3039 Page 3 December 2, 2021 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 Department provided a supplemental response on November 30, 2021. The November 30th response explained the reasoning for withholding requested district information of the students was “[t]here [was] no way to produce a student's DOB and their district, in the aggregate, without seriously compromising student privacy.” The Department noted in the November 30th response that Mr. Mroz request “implicates the privacy of a large group of students i.e. all second graders in Massachusetts. As set forth in Globe v. DPH 482 Mass 472 (2019), in certain circumstances, there is a greater privacy interest in a compilation of personal information than in the discrete information that a compilation summarizes.” The Department asserted “[d]ates of birth are highly linkable with the identification of students, and students records for which confidentiality is required under state and federal law and regulation. The Department has provided all requested data in a form that will not lead to identifications of specific students.” Based on the November 30th supplemental response, I find that the Department has not demonstrated that it has narrowly tailored its application of Exemption (c). 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). Conclusion Accordingly, the Department is ordered to provide Mr. Mroz 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: Gerry Mroz