Pedro DeLeon v. Waltham, City of - Public Schools (SPR 20221790)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 17, 2022 SPR22/1790 Brian K. Reagan, Ed.D. Superintendent of Schools Waltham Public Schools 617 Lexington Street Waltham, MA 02452 Dear Dr. Reagan: I have received the petition of Pedro DeLeon appealing the response of the Waltham Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 13, 2022, Mr. DeLeon requested four categories of documents. Previous Appeals This request was the subject of previous appeals. See SPR22/0720 Determination of the Supervisor of Records (April 5, 2022) and SPR22/0798 Determination of the Supervisor of Records (April 20, 2022). In my April 20th determination, I ordered the School to demonstrate whether it had responded within 10 business days of receiving the request in order to charge fees. Following further communication with this office and Mr. DeLeon, the School responded on July 30, 2022, providing responsive records in redacted form. Unsatisfied with the School’s response, Mr. DeLeon further 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 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

Brian K. Reagan, Ed.D. SPR22/1790 Page 2 August 17, 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. Current Appeal In his appeal petition, Mr. DeLeon contends that “this response is incomplete for a number of reasons. In the response cover letter, [the School] states that the request resulted in over 30,000 documents, but the response [Mr. DeLeon] received contains a small fraction of documents. There are a lot of documents from individuals or with keywords that [Mr. DeLeon] requested that were withheld.” The School’s July 30th Response In its July 30, 2022 response, the School cites Exemptions (a), (c), and (n) of the Public Records Law, along with the attorney-client privilege, for withholding responsive records. See G. L. c. 4, § 7(26)(a), (c), (n). 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Brian K. Reagan, Ed.D. SPR22/1790 Page 3 August 17, 2022 Under Exemption (a), the School states that “this includes student records information which is protected from disclosure under applicable state and federal student records laws and regulations. This also includes personnel records relating to other employees or records relating to students which are protected under the Massachusetts privacy law found at Mass. G.L. c. 214 § 1B.” G. L. c. 214, § 1B, The Privacy Statute The School cites G. L. c. 214, § 1B, known as the Privacy Statute, which provides: A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § 1B. This statute does not specifically, nor by implication, exempt any particular records from disclosure; therefore, this statute does not operate under Exemption (a) for the withholding of records or information responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). Therefore, this statute does not allow for the withholding of responsive records. Additionally, based on the School’s response, it is unclear what other statutes or regulations the School is referring to under Exemption (a) in order to withhold or redact the responsive records. See G. L. c. 66, § 10(b)(iv) (a 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”). The School must clarify this. 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is

Brian K. Reagan, Ed.D. SPR22/1790 Page 4 August 17, 2022 a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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 (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). 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. Under Exemption (c), the School states that “this also includes personnel records relating to other employees and medical information relating to students or staff.” Although the School may properly redact medical information that is of a personal nature and relates to a named individual, it is unclear how other information contained in the responsive records constitutes intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Further, the School did not provide information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The School must clarify these matters. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize

Brian K. Reagan, Ed.D. SPR22/1790 Page 5 August 17, 2022 public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. Under Exemption (n), the School states that “this relates to records relating to security cameras in Waltham High School and related matters.” Based on the School’s response, it is unclear how the responsive records may be redacted or withheld pursuant to Exemption (n). Specifically, it is unclear how records “relating to security cameras” are “likely to jeopardize public safety or cyber security.” See PETA, at 289- 90. The School must clarify this. Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460.

Brian K. Reagan, Ed.D. SPR22/1790 Page 6 August 17, 2022 Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege, the Supervisor of Records “shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Under the attorney-client privilege, the School merely states “that communications between the Waltham Public Schools and its legal counsel are not being produced as they are protected from disclosure by the attorney-client privilege.” The School must provide “a detailed description of the record[s], including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” See G. L. c. 66, § 10A(a). Further, the School must clarify whether the communications were made in confidence and that the privilege as to the communications has not been waived. Possession, Custody, or Control The School is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Where the School states that “the results of the initial search yielded more than 30,000 documents,” it is unclear whether the School has provided all responsive records in its possession, custody, or control. As discussed above, the School must identify all the records, categories of records, or portions of records in its possession that it intends to withhold from disclosure, as well as provide the specific reasons for such withholding. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; 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 School is ordered to provide Mr. DeLeon 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.

Brian K. Reagan, Ed.D. SPR22/1790 Page 7 August 17, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Pedro DeLeon