Laura H. Ortiz v. Lynn, City of - Law Department (SPR 20230790)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 8, 2023 SPR23/0790 James Lamanna, Esq. Assistant City Solicitor City of Lynn 3 City Hall Square, Room 406 Lynn, MA 01901 Dear Attorney Lamanna: I have received the petition of Laura Ortiz appealing the response of the City of Lynn (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 3, 2022, Ms. Ortiz requested the following records: [1] Copy of all Contracts, School Lunch Contracts … between City of Lynn and/ or Lynn Public School District/other with Chartwells, and/or Chartwells K12 or other applicable vendor… For School Years 2022-2023. [2] School Lunch Contracts … between City of Lynn and/or Lynn Public School District/other with Chartwells, and/or Chartwells K12 Partner Revolution Foods (who supplies the meals for any Lynn Public School) or other applicable vendor(s) … For School Years 2022-2023. On September 2, 2022, Ms. Ortiz modified her request to include numerous records regarding a specified school lunch program and emails between the City and Lynn Public Schools. Prior Appeals The requested records were the subject of prior appeals. See SPR22/2209 Determination of the Supervisor of Records (October 12, 2022); SPR22/2303 Determination of the Supervisor of Records (October 26, 2022); and SPR22/2809 Determination of the Supervisor of Records (December 20, 2022, and January 13, 2023). In my January 13th determination, I ordered the City to clarify whether it possesses additional records responsive to the request. Subsequently, the City responded on January 26, 2023, providing additional responsive records, and citing Exemption (a) of the Public Records Law, FERPA, and 603 C.M.R. 23.00 for withholding two 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

James Lamanna, Esq. SPR23/0790 Page 2 May 8, 2023 responsive records. Unsatisfied with the City’s response, Ms. Ortiz appealed, and this case 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 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. Current Appeal In her appeal petition, Ms. Ortiz contends, among other things, that “the City of Lynn cannot ever be in receivement of FERPA or Massachusetts students records at all,” and further argues that the City “would never be nor should it be in custodial possession of actual privileged student education records of Lynn Public Schools (whom has the duty to REDACT anything it send to the City of Lynn), and cannot ever utilize this exemption not being an actual municipalities ‘public school district’ custodian.” Ms. Ortiz further contends that the City has not provided all responsive records in its possession, custody, or control. In her appeal petition, Ms. Ortiz also raises numerous arguments against claims of attorney-client privilege. Please note that where the City has not claimed the attorney-client privilege for withholding any records, and specifically states in an April 29, 2023 email that “the City did not withhold any documents based upon attorney-client privilege,” I decline to address such arguments in this determination. The City’s January 26th and April 29th Responses In its January 26, 2023 response, and in an email to Ms. Ortiz and this office on April 26, 2023, the City cites Exemption (a) of the Public Records Law, the Family Educational Rights and Privacy Act, and 603 C.M.R. 23.00, et seq. for withholding two responsive emails. See G. L. c. 4, § 7(26)(a).

James Lamanna, Esq. SPR23/0790 Page 3 May 8, 2023 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 In its response, the City cites the Family Educational Rights and Privacy Act (FERPA), a federal statute which 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 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 goes on to list multiple categories of individuals, agencies, and organizations to which “education records” may be released. The following pertinent definitions are provided in 34 C.F.R. 99.3:

James Lamanna, Esq. SPR23/0790 Page 4 May 8, 2023 Education records. (a) The term means those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution. Massachusetts Student Records Regulations Additionally, in its response, the City cites 603 C.M.R. 23.00 et seq. Please note that 603 C.M.R. 23.02 defines “student record” as follows: Student Record shall consist of the Transcript and the Temporary Record, including all information--recording and computer tapes, microfilm, microfiche, or any other materials--regardless of physical form or characteristics concerning a student 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 of the Commonwealth. The term as used in 603 CMR 23.00 shall mean all such information and materials regardless of where they are located, except for the information and materials specifically exempted by 603 CMR 23.04. 603 C.M.R. 23.02 (emphasis in original). Additionally, 603 C.M.R. 23.07(4) provides in pertinent part: Access of Third Parties. 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. 603 C.M.R. 23.07(4). In its January 26th response, under the statutes and regulations cited above, the City argues that it “has withheld the production of two separate e-mails (not relating in any way to school lunches).” The City argues that “these e-mails are protected from disclosure as a result of student privacy laws, including the federal Family Educational Rights and Privacy Act (FERPA) and the Massachusetts Student Records Regulations found at 603 CMR 23.00, et seq.” In its April 29th email, the City further argues that “these two emails identified academic and medical issues of two students in the Lynn Public School System.” The City further explains that “the City produced all documents in its possession responsive to Ms. Ortiz’s request with the exception of two emails which relate to specifically named students (unrelated to the school lunch program which is the subject of the requests and prior appeals).” Specifically, the City argues that “the two emails withheld concerned the academic and medical history of specifically named students enrolled in the Lynn Public School Department. Such e-mails are not public records as the City is specifically prohibited by law to release these two emails.”

James Lamanna, Esq. SPR23/0790 Page 5 May 8, 2023 Based on the information provided in the City’s January 26th response and April 29th email, I find that the City has met its burden to demonstrate that the two withheld emails are the types of records contemplated under 20 U.S.C. § 1232g(b)(1) and 603 C.M.R. 23.02. Accordingly, the City may properly withhold the two emails under Exemption (a) and the statutes and regulations cited above. Additional Responsive Records Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In its April 29th email, the City states the following: At the present time, the City of Lynn has provided Ms. Ortiz all documents that she has requested to date regarding the City’s school lunch program in its possession. The City of Lynn is not withholding any documents responsive to Ms. Ortiz’s request relating to the school lunch program. Where the City has confirmed that it has provided all responsive records in its possession, except for the two emails discussed above, I find that the City has met its burden in responding to this request. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Ortiz is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz