Heather Stevenson v. Boston, City of - Public Schools (SPR 20213278)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 30, 2021 SPR21/3278 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Heather Stevenson, Esq., of the Boston Globe, appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 25, 2021, Naomi Martin, of the Boston Globe, requested “[r]ecords showing a log or spreadsheet of internal investigations of Boston Public Schools staff members conducted by the Boston Public Schools’ Office of Equity since August 2016 including [identified terms].” The City responded on December 2, 2021. Unsatisfied with the response, Attorney Stevenson petitioned this office and this appeal, SPR21/3278, 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) (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). 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

Shawn A. Williams, Esq. SPR21/3278 Page 2 December 30, 2021 The City’s December 2nd Response In its December 2, 2021 response, the City provided certain records and stated, “[t]he data … received is what has been logged in their systems. This does not mean that incidents or reports have not been investigated and completed, just that they have not yet entered the data in the system. What you have received includes everything logged to date … there are no documents responsive to your request at this time with respect to additional cases for 2020 and 2021.” The City cited Exemptions (a) to withhold the requested records in their entirety and Exemption (c) to redact requested records on the basis of privacy. Current Appeal Attorney Stevenson asserted in her appeal, “[a]s a basis for withholding the responsive records, BPS claimed exemption (c) plus a laundry list of statutes and regulations in an effort to shield the records from public scrutiny, which is consistent with the lack of specific information BPS Office of Equity presents in its annual report.” Attorney Stevenson also asserted, “… [t]he responsive records can be redacted where necessary to protect the privacy interests of the parties.” 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 Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its response, the City asserted Exemption (a) to exempt the requested records and cited “20 U.S.C.S. § 1232g(b); 603 CMR 23.07(4) … a records custodian is permitted to withhold student record information as well as information subject to withholding under the Family Educational Rights and Privacy Act (also known as FERPA).”

Shawn A. Williams, Esq. SPR21/3278 Page 3 December 30, 2021 “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. § 1232g(a)(4)(i-ii). In support of redacting the records under FERPA, the City stated, “[t]he withheld summary columns contain student information that is confidential under state and federal law. Moreover, if such information were to be released, it would not only constitute an unwarranted invasion of privacy but would also have a significant chilling effect on victims and/or witnesses from coming forward and/or participating in Equity Investigations.” Based upon the City’s response and review of the file, it is unclear as to how all the requested records are restricted under 20 U.S.C.S. § 1232g(b); 603 CMR 23.07(4) known as FERPA. Further, the City’s response did not contain the specificity required in a denial of access to public records. The City must identify the redacted column headers and what records it has in its possession, custody or control that are responsive to Attorney Stevenson’s request. As a result, I find that the City did not satisfy its burden in responding to this records request. 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 Prop. Dep’t., 380 Mass. 623, 625

Shawn A. Williams, Esq. SPR21/3278 Page 4 December 30, 2021 (1980). Therefore, determinations must be made on a case by case basis. 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). When analyzing a privacy claim, there is 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. With regard to Exemption (c), the City stated, “[t]he withheld information is exactly the type of personnel information that the privacy exemption is designed to shield … if such information were to be released, it would constitute an unwarranted invasion of privacy and would also have a significant chilling effect on victims and/or witnesses from coming forward and/or participating in Equity Investigations. This information is not available from another public source.” Based on the City’s response, it is unclear how these records contain intimate details of a highly personal nature nor is it clear how disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. Also, the City did not provide information with respect to examining whether the public interest in obtaining the requested records outweighs the seriousness of any invasion of privacy. Id. As a result, I find that the City has not met its burden to withhold the requested records under Exemption (c). Conclusion Accordingly, the City is ordered to review the request and provide a response to Attorney Stevenson made in accordance with the Public Records Law, its Regulations and this order within ten 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: Heather Stevenson, Esq.