Walter Wuthmann v. Boston, City of - Public Records (SPR 20231009)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 25, 2023 SPR22/1009 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Walter Wuthmann, of WBUR/NPR Boston, appealing the response of the Boston 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 April 25, 2023, Mr. Wuthmann requested, “...a copy of the diploma, or any certificate that confirms, that [named person] graduated from Madison Park Technical Vocational High School. Alternatively, if the diploma or certificate cannot be sent over in its original form, written confirmation from BPS that [named person] graduated from Madison Park Technical Vocational High School.” The School responded on May 9, 2023. Unsatisfied with the response, Mr. Wuthmann petitioned this office and this appeal, SPR23/1009, 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. 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. 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

Shawn A. Williams, Esq. SPR22/1009 Page 2 May 25, 2023 The School’s May 9th Response In its May 9, 2023 response, the School cited Exemption (a) to withhold the requested records in their entirety. Current appeal In his appeal, Mr. Wuthmann asserts, “I believe Boston is wrong in its reasoning. First, Boston Public schools say the following information falls under an exception to FERPA for directory information and can be released: ‘student’s name, age, grade, dates of enrollment’ In addition, high schools routinely release the lists of graduates each year and publish year books with student names. Finally, Massachusetts DOE regulations say they can release ‘a student's name, address, telephone listing, date and place of birth, major field of study, dates of attendance, weight and height of members of athletic teams, class, participation in officially recognized activities and sports, degrees, honors and awards, and post-high school plans without the consent of the eligible student or parent.’ For all these reasons, I believe Boston should be able to provide the diploma for the named student, or at least confirm he graduated from Madison Park Technical Vocational High School.” 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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.

Shawn A. Williams, Esq. SPR22/1009 Page 3 May 25, 2023 In its response, the School cited the Family Educational Rights and Privacy Act (FERPA), to withhold the requested records. “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. It is unclear how all the requested records constitute student information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The School must clarify this matter. Conclusion Accordingly, the School is ordered to provide Mr. Wuthmann with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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. pre@sec.state.ma.us. Mr. Wuthmann may appeal the substantive nature of the School's response within ninety days. See 950 C.M.R. 32.08(1).

Shawn A. Williams, Esq. SPR22/1009 Page 4 May 25, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Walter Wuthmann