Jeffrey M. Simons v. Framingham, City of - Public Schools Department (SPR 20222148)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 28, 2022 SPR22/2148 Amy Kane Executive Assistant Framingham Public Schools 19 Flagg Drive Framingham, MA 01702 Dear Ms. Kane: I have received the petition of Jeffrey M. Simons, of Fogelman & Fogelman LLC, appealing the response of the Framingham Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 19, 2022, Attorney Simons requested: Any and all documents, surveillance footage, notes, emails, correspondence, photos, interviews, recordings, etc. relating to the allegations of bullying alleged by [two named individuals] during the 2021-2022 school year. Also, any and all documents, communications, contracts and correspondence with the transportation company involved in the alleged bullying incidents. On July 22, 2022, the School responded. Unsatisfied with the School’s response, Attorney Simons petitioned this office and this appeal, SPR22/2148, 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

Amy Kane SPR22/2148 Page 2 September 28, 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 July 22nd Response In its July 22, 2022 response, the School states: The records requested by you contain personally identifiable information which is exempt from disclosure under [Exemptions (a) and (c)]. Personally identifiable information is exempt from disclosure by federal and state student and family privacy laws. See the federal Family Education Rights and Privacy Act (FERPA); the federal Individuals with Disabilities Education Act (IDEA), and the state student record statutes and regulations concerning confidentiality of student record information. See 20 U.S.C. § 1232g, 20 U.S.C. § 1400; see also G. L. c. 71, §§ 34D, 60, G. L. c. 71B, §1; and 603 CMR 23.00 et seq. See also Champa v. Town of Weston, 473 Mass. 86 (2015). 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

Amy Kane SPR22/2148 Page 3 September 28, 2022 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. 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 (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). This exemption requires 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. Current Appeal In his current appeal, Attorney Simons asserts:

Amy Kane SPR22/2148 Page 4 September 28, 2022 On July 22, 2022 Framingham provided the attached response….Since that time, we have received documents but were informed that the surveillance footage showing our client being bullied cannot be provided because other children can be seen on the video. After following up several times without receiving a substantive response on August 29, 2022, we provided information for a company that could be hired to edit the footage to blur out the other children. We included the companies’ name and approximate cost for the service. We have not received any response. We are requesting that Framingham be required to provide the surveillance footage with the images blurred out within 30 days. This can be accomplished by using the services of the company recommended to them or some other service that they find. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also 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). The School’s response did not contain the specificity required in a denial of access to public records. The School merely cites Exemptions (a) and (c) without any explanation of the applicability of the exemptions to the responsive records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, it is unclear if the responsive records could be edited to remove personally identifiable information. The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide a response to Attorney Simons, in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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.

Amy Kane SPR22/2148 Page 5 September 28, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Jeffrey M. Simons, Esq.