Ryan Bagwell v. Chelsea City Solicitor (SPR 20222037)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 16, 2022 SPR22/2037 Cheryl Anne Watson, Esq. City of Chelsea City Solicitor Chelsea City Hall, Room 307 500 Broadway Chelsea, MA 02150 Dear Attorney Watson: I have received the petition of Ryan Bagwell appealing the response of the City of Chelsea (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 12, 2022, Mr. Bagwell requested: “[a] document or documents that contain the total number of students who participate in weekly [C]ovid testing during the 2021-2022 school year. In lieu of the actual document(s), if it’s easier. [P]lease feel free to simply provide me with the total number of students who participated.” The City’s Records Access Officer, Jessica Morales, provided a response, denying the request in its entirety pursuant to the FERPA Act. As a result of the denial, Mr. Bagwell petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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

Cheryl Anne Watson, Esq. SPR22/2037 Page 2 September 16, 2022 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. 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. Family Educational Rights and Privacy Act (FERPA) In its response, the City referenced the Family Educational Rights and Privacy Act (FERPA) as applicable to withhold the requested records or information. FERPA provides in relevant part: “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).

Cheryl Anne Watson, Esq. SPR22/2037 Page 3 September 16, 2022 FERPA defines “personally identifiable information” as including, but not limited to: The student’s name; (b) The name of the student's parents or other family member; (c) The address of the student or student's family; (d) A personal identifier, such as the Student’s social security number, student number, or biometric record; (e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name; (t) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates. 34 C.F.R. § 99.3. Burden of specificity; duty to segregate Based upon the City’s denial and the language in FERPA regarding “personally identifiable information” of students, I find that the City has not met its burden of specificity in responding to Mr. Bagwell’s August 12th request, and in withholding the requested information. The City denied Mr. Bagwell’s request without providing the support required in withholding responsive records or information. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). It is unclear why the personally-identifiable information cannot be redacted to protect the privacy of the students that may be the subject of the requested records or information. The City must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Furthermore, it is unclear whether the City has any statistical information or data that is responsive to Mr. Bagwell’s request that can be provided, and at the same time protect the names and identifiable information of the students who may be the subject of the records or information. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Mr. Bagwell with a response to his request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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.

Cheryl Anne Watson, Esq. SPR22/2037 Page 4 September 16, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Ryan Bagwell