Mitchell I. Greenwald, Esq. v. Lenox, Town of - Town Clerk (SPR 20221006)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 10, 2022 SPR22/1006 Kerry L. Sullivan Town Clerk Town of Lenox 6 Walker Street Lenox, MA 01240 Dear Ms. Sullivan: I have received the petition of Attorney Mitchell I. Greenwald appealing the response of the Town of Lenox (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 29, 2022, Attorney Greenwald requested “a copy of the video surveillance recording for the period on March 22, 2022, between 8 and 11 am, at the main lobby entrance to the Morris School.” The Town responded on April 7, 2022, stating that it was withholding the responsive records pursuant to Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). Unsatisfied with the Town’s response, Attorney Greenwald appealed, and this case 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 agency or municipality 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. Att’y 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. If there are any fees associated with a response, a written good faith estimate must be 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

Kerry L. Sullivan SPR22/1006 Page 2 May 10, 2022 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. Current Appeal In his appeal petition, Attorney Greenwald reiterates that “the request was for a surveillance video of a particular time and place; specifically, it is of a lobby entrance area.” Further, he contends the following: The exemption claim has no basis in the law or fact cited by the Town, or elsewhere. In particular, the video does not appear to satisfy the definition of a “student record” found at 603 CMR 23.02 because, among other reasons, it is not organized “on the basis of a student’s name or in a way that such student may be individually identified”. The video of a lobby entrance area would depict many students and staff, many likely to be unidentifiable, and is not related to any particular student or group of students. The Town’s April 7th Response In its April 7, 2022 response, the Town states that it is withholding one responsive record pursuant to Exemption (a) of the Public Records Law, and G. L. c. 71, § 34D, and 603 C.M.R. 23.00 et seq. See G. L. c. 4, § 7(26)(a). 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, 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

Kerry L. Sullivan SPR22/1006 Page 3 May 10, 2022 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 Town first cites G. L. c. 71, § 34D, which provides in pertinent part: The board of education shall adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the commonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or any other records concerning such pupil which are kept or are required to be kept. G. L. c. 71, § 34D. Additionally, the Town cites 603 C.M.R. 23.00 et seq. Please note that 603 C.M.R. 23.02 defines “student record” as follows: Student Record 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 (emphasis in original). Further, 603 C.M.R. 23.03 provides limitations and requirements on the collection of data for student records, and provides that: All information and data contained in or added to the student record shall be limited to information relevant to the educational needs of the student. Information and data added to the temporary record shall include the name, signature, and position of the person who is the source of the information, and the date of entry into the record. Standardized group test results that are added to the temporary record need only include the name of the test and/or publisher, and date of testing. 603 C.M.R. 23.03 In its response, the Town argues the following: Any and all records that identify a student are exempt from disclosure under exemption (a) to the Public Records Law as they are records “specifically or by necessary implication exempted from disclosure by statute.” The specific statute in question is Mass. Gen. L. c. 71, § 34D, which addresses student records. That statute also references

Kerry L. Sullivan SPR22/1006 Page 4 May 10, 2022 student record regulations, 603 CMR 23.00 et. seq., which specifically prohibits the disclosure of student record information to a third party without the specific, informed written consent of the eligible student or the parent. Based on the Town’s response, and the definition of student records provided in the regulations above, it is unclear how the requested video recording constitutes a student record. The Town must clarify this. Additionally, it is unclear how the video may be withheld in its entirety. The Town must explain whether the video can be redacted, and segregable portions provided to Attorney Greenwald. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Town is ordered to provide Attorney Greenwald with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations 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 the response to this office at pre@sec.state.ma.us. Sincerely, . · . I '' . - ~ - . Rebecca S. Murray Supervisor of Records cc: Mitchell I. Greenwald, Esq.