Maryanne Stanganelli v. Brockton, City of - Public Schools (SPR 20230659)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 20, 2023 SPR23/0659 Bou Lim Records Access Officer Brockton Public Schools 43 Crescent Street Brockton, MA 02301 Dear Bou Lim: I have received the petition of Maryanne Stanganelli, Esq. of Insider Inc., on behalf of Matt Drange, appealing the response of the Brockton 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 August 29, 2022, Mr. Drange requested: [1] All separation agreements and settlements reached with current and former teachers who taught in the district between January 1, 2017 through the day this request is fulfilled. [2] All public records relating to any and all claims of misconduct against current and former teachers who taught in the district between January 1, 2017 through the day this request is fulfilled… Prior Appeal This request was the subject of a previous appeal. See SPR22/2898 Determination of the Supervisor of Records (January 5, 2023). The School provided a response on January 20, 2023. Unsatisfied with the response, Attorney Stanganelli petitioned this office and this appeal, SPR23/0659, 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 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

Bou Lim SPR23/0659 Page 2 April 20, 2023 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. Attorney 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. The School’s January 20th Response In its January 20, 2023 response, the School cited Exemptions (a) and (c) of the Public Records Law to redact and withhold the requested 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, 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 response, the School cites the Family Educational Rights and Privacy Act (FERPA), G. L. c. 71, § 34D and 603 C.M.R. 23.00 et. seq. to withhold the requested records. The School also cites G. L. c. 119, § 51E.

Bou Lim SPR23/0659 Page 3 April 20, 2023 “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). 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. 603 C.M.R. 23.00 which states in pertinent part as follows: Except for the provisions of 603 CMR 23.07(4)(a) through 23.07(4)(h), 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. When granting consent, the eligible student or parent shall have the right to designate which parts of the student record shall be released to the third party. 603 C.M.R. 23.07(4). In its response, the School stated, “[t]he records requested and withheld under this exemption included records responsive to your second request noted above, which, in many cases, include student names, and details about the students (i.e., grades, academic performance, classroom assignments, information about disabilities or learning plans, descriptions of events, parent/guardian names, etc.) that, even absent the student’s name, would allow a reasonable person in the school community to identify the student with reasonable certainty. It is on this basis that [the School] has asserted that it cannot produce those identified responsive records that contain student record information.”

Bou Lim SPR23/0659 Page 4 April 20, 2023 In its response the School cited G. L. c. 119, § 51E and advised that the statute “... prohibits the disclosure of documents submitted to or created by the Department of Children and Families in cases of reports of abuse or neglect of a child.” The statute states in pertinent part as follows: The department shall maintain a file of the written reports prepared under this section and sections 51A to 51D, inclusive. These written reports shall be confidential. G. L. c. 119, § 51E. Exemption (c) Exemption (c) permits the withholding of: 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). 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. 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. Sch. 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 Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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).

Bou Lim SPR23/0659 Page 5 April 20, 2023 The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). 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. In its response, the School stated, Many records responsive to your request would contain disciplinary information regarding school employees. They also contain information about the employee’s performance, which would be considered personnel information. Given the scope of your request – which is for documents specifically related to investigations regarding allegations of abuse or misconduct – it is very reasonable that all responsive documents would contain these categories of personnel information as [the School] was specifically investigating allegations against these employees to determine potential employment decisions. As a result, this information constitutes core categories of records useful in making an employment decision pertaining to an identifiable school employee and are withheld on that basis. First, many responsive records would contain disciplinary or other personnel information regarding an identifiable individual. This information, if disclosed, would result in personal embarrassment to a reasonable person. Second, these records would contain intimate details of a highly personal nature, as they would discuss disciplinary information concerning a specific, identifiable school employee and/or allegations that an identified individual engaged in misconduct or abuse of a student. Third, any responsive information would be communicated through confidential internal . . . correspondence to the specific school employee(s), which correspondence is not accessible to the public. ... there are no records of allegations against [the School] administrators – all of the responsive records concern non-administrators, who have a greater expectation of privacy given their role and their lesser public role.... What was redacted were the names of the employees with whom the agreements were made. Including their names would certainly be an invasion of their privacy, would contain intimate details of highly personal nature, and could subject them to personal embarrassment as it would disclose the existence of such an agreement, the fact that there were allegations against them, as well as other details of a highly personal nature. These agreements are not available to the public in an

Bou Lim SPR23/0659 Page 6 April 20, 2023 unredacted format so they would not be available from any other source. In camera inspection In order to facilitate a determination as to the applicability of the School’s Exemption (a) and (c) claims to redact and withhold the requested records, the School must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). 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. Massachusetts 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. Order Accordingly, the School is ordered to provide this office with an un-redacted copy of the requested records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Maryanne Stanganelli