Justin R. McCarthy v. Ludlow Public Schools (SPR 20230306)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 2, 2023 SPR23/0306 Susan Santos Administrative Assistant to the Superintendent Ludlow Public Schools 205 Fuller Street Ludlow, MA 01056 Dear Ms. Santos I have received the petition of Justin R. McCarthy, Esq. appealing the response of the Ludlow Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 31, 2023, Attorney McCarthy requested, “…the emails referenced by [a named employee] as well as any other written correspondence between/among school officials regarding the incident.” On February 13, 2023, the School responded. Unsatisfied with the response, Attorney McCarthy petitioned this office and this appeal, SPR23/0306, was opened as a result. While this appeal was pending, the School provided a supplemental response on March 2, 2023. 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 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 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

Susan Santos SPR23/0306 Page 2 March 2, 2023 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 February 13th and March 2nd responses In its February 13, 2023 response, the School states that it is withholding the responsive records pursuant to Exemption (a) of the Public Records Law, and cites G. L. c. 71, § 34D. In its March 2, 2023 response, the School provided a further explanation for withholding the requested records pursuant to 603 C.M.R. 23.02 and 603 C.M.R. 23.07(4). 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. In its February 13th response, the School cites G. L. c. 71, § 34D, which provides in pertinent part: The board of education shall adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the commonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or any other records concerning such pupil which are kept or are required to be kept.

Susan Santos SPR23/0306 Page 3 March 2, 2023 G. L. c. 71, § 34D. In its March 2, 2023 response, the School cites 603 C.M.R. 23.02 and 603 C.M.R. 23.07(4) as applicable to withhold the requested record. The School explains that “603 CMR 23.02, define[s] a temporary record as all other student record information besides the transcript that is organized on the basis of the student’s name or in a way that such student may be individually identified, and that is kept by the public schools. Temporary record information clearly shall be of importance to the educational process.” The School further states that, “603 CMR 23.07(4) provides that no third party shall have access to information in or from a student record without the specific, informed written consent of the eligible student or the parent with the following exceptions.” The School concludes that the requested records are student records, because “…it identifies the student by name and contains information of importance to the educational process, specifically the counseling being provided to the student.” 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 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.

Susan Santos SPR23/0306 Page 4 March 2, 2023 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, Manza Arthur Supervisor of Records cc: Justin R. McCarthy, Esq. Rebecca Bouchard, Esq. Frank Tiano