Joe Sciacca v. Hingham, Town of - Public Schools (SPR 20230017)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 20, 2023 SPR23/0017 Margaret Adams, Ed.D. Superintendent of Schools Records Access Officer Hingham Public Schools 220 Central Street Hingham, MA 02043 Dear Dr. Adams: I have received the petition of Joe Sciacca, of Channel 7 News, appealing the response of the Hingham Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 18, 2022, Mr. Sciacca requested videos from a School bus driven on 11/17/22. Prior Appeal The requested records were the subject of a prior appeal. See SPR22/2797 Determination of the Supervisor of Records (December 19, 2022). In my December 19th determination, I closed the appeal after the School indicated that it would provide a further response to Mr. Sciacca. On January 3, 2023, the School provided a response. Unsatisfied with the School’s response Mr. Sciacca petitioned this office and this appeal, SPR23/0017, 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, § 10 A(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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to 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

Margaret Adams, Ed.D. SPR23/0017 Page 2 January 20, 2023 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). The School’s January 3rd response In its January 3, 2023 response, the School indicated that the requested records are being withheld under Exemption (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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. FERPA The Family Educational Rights and Privacy Act (FERPA) is a federal statute and provides in pertinent part: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained

Margaret Adams, Ed.D. SPR23/0017 Page 3 January 20, 2023 therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than to the following . . . 20 U.S.C. § 1232g(b)(1). The statute further defines student records as “files, documents, and other materials which- (i) contain information directly related to a student; and (ii) 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)(A). The School states: The videos in question are education records because students are specifically identified, and the school district maintains the records. The federal agency responsible for enforcing and interpreting FERPA has stated that once a video becomes relevant to a particular student for some specific reason, the portion of the video relating to that student’s particular circumstances becomes an education record of that student. In this case, the student-athletes are identifiable on the videos. Moreover, the district does not possess technology to redact individual students in the videos, to the extent that such technology exists. Although portions of the records may fall within Exemption (a) and the statute described above, the School has not provided enough information to demonstrate how all the requested records may be withheld in their entirety. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). It is unclear why the School cannot provide redacted portions of the requested records. The School must clarify this matter. Conclusion Accordingly, the School is ordered to provide Mr. Sciacca with a response to the request, provided 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.

Margaret Adams, Ed.D. SPR23/0017 Page 4 January 20, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Joe Sciacca