Colman Herman v. Boston, City of - Public Schools (SPR 20221162)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 26, 2022 SPR22/1162 Shawn A. Williams, Esq. Records Access Officer Boston Public Schools 2300 Washington Street Roxbury, MA 02119 Dear Attorney Williams: I have received the petition of Colman Herman appealing the response of the Boston Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 17, 2022, Mr. Herman requested an identified police report referenced in a Boston Globe article. Previous Appeal The records sought by Mr. Herman are the subject of a previous appeal. See Supervisor of Public Records Determination SPR22/0562 (March 15, 2022). There, I found it unclear whether segregable portions of the responsive records could be provided to Mr. Herman and how the report could be withheld in its entirety under Exemption (f) of the Public Records Law. The School provided a supplemental response on May 10, 2022 and stated that it is withholding the report pursuant to Exemption (a) of the Public Records Law. Unsatisfied with the School’s response, Mr. Herman petitioned this office and this appeal, SPR22/1162, 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 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 SPR22/1162 Page 2 May 26, 2022 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 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 School’s May 10th Response In its May 10, 2022 response, the School withheld the report in its entirety pursuant to Exemption (a). The School cites FERPA and Champa v. Weston Public Schools, 473 Mass. 86, 91-92 (2015) in withholding the report. Redactions within responsive records The Supreme Judicial Court (SJC) found that with respect to special education records, “both exemption (a) and exemption (c) to the definition of public records in G. L. c. 4, § 7, Twenty-sixth, apply to the agreements, but that personally identifying information in the agreements is subject to redaction, and when the agreements are properly redacted, they must be disclosed.” Champa v. Weston Public Schools, 473 Mass. 86, 98-99 (2015). With respect to Exemption (a), the SJC refers to the Family Educational Rights and Privacy Act (FERPA) and found, “[t]he analysis to determine what redaction is necessary will be a case-by-case determination that considers the request, the school and the community, and the availability to the requester of other information that indirectly identifies the student. 34 C.F.R. §§ 99.3, 99.3 l(b)(l).” Id. at 93. The SJC further indicates the following: The agreements may contain information that amounts to an unwarranted invasion of the student's personal privacy. As previously discussed, the agreements may link the name of the individual student (and his or her family) to information about the services and programming the child will receive and information about the child’s disability, progress, and needs. The School also states: [T]he responsive record is a school police report; this is not the same type of report as a report issued by the Boston Police Department…It should be noted that the article you reference discloses the school and the date of the incident … The BPS maintains that this BPS investigation record is entirely exempt from

Shawn A. Williams SPR22/1162 Page 3 May 26, 2022 disclosure under FERPA and for the reasons stated below redaction is not possible … The Massachusetts Supreme Judicial Court notes that FERPA applies to education records that are both “directly related to a student,” and “are maintained by an educational agency or institution.”…See Champa v. Weston Public Schools, 473 Mass. 86, 91-92 (2015). Unlike the records requested in Champa, the record you seek contains detailed, specific, instances of allegations that led to investigation by the BPS. Unlike a contract or a settlement agreement, the record you seek contains case-specific information regarding allegations that include specific situations. As referenced above, the Boston Globe article identifies the school…the age, gender and other identifying information…the date…and other factual information…See Mother who says teacher hit her son faults Boston Public Schools: ‘I had trust and faith they would keep my son safe but they didn’t’, By James Vaznis Globe Staff, Updated February 17, 2022, 8:02 p.m. (accessed May 10, 2022) … In camera inspection In order to facilitate a determination as to the applicability of the Exemption (a) claim made by the School to withhold responsive records, the School must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the School’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously

Shawn A. Williams SPR22/1162 Page 4 May 26, 2022 impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the School is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman