Michael Narekiewicz v. Tewksbury, Town of - Public Schools (SPR 20231160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 15, 2023 SPR23/1160 Brenda Theriault-Regan Superintendent of Schools Records Access Officer Tewksbury Public Schools 139 Pleasant Street Tewksbury, MA 01876 Dear Superintendent Regan: I have received the petition of Michael Narekiewicz appealing the response of the Tewksbury Public School (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 27, 2023, Mr. Narekiewicz submitted the following request: [T]o review the recording(s) of [specified audio and video from a school bus]. This right is granted under the “Family Educational Rights and Privacy Act” (FERPA). And the “2017 Letter to Wachter.” It is my understanding that you are required to allow me to review the recording within 45 days of notice. It is my position that by refusing to allow me to review the requested audio and video is a violation of Federal Law and the states Public Records Request procedure. The School responded on May 11, 2023, denying the request and citing Exemptions (a), (c), and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (n). Unsatisfied with the School’s response, Mr. Narekiewicz appealed, and this case was opened as a result. While this appeal was pending, the School also provided a supplemental response to Mr. Narekiewicz and this office on June 9, 2023, reiterating its claims for withholding the records. Status of the Requestor Please note that under the Public Records Law the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Narekiewicz’s status as a parent 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

Brenda Theriault-Regan SPR23/1160 Page 2 June 15, 2023 will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. It is unclear if Mr. Narekiewicz may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Mr. Narekiewicz a greater right of access to the responsive records. 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 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 May 11th and June 9th Responses In its May 11, 2023 and June 9, 2023 responses, the School states that it is withholding “the Bus 1 footage from April 12, 2023.” The School describes the withheld video as “broad surveillance video footage recorded for the purpose of student safety and security on school bus transportation, capturing footage of the individuals (many students and one bus driver) on the school bus that day.” The School states that it is withholding the responsive video in its entirety under Exemptions (a), (c), and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (n). 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).

Brenda Theriault-Regan SPR23/1160 Page 3 June 15, 2023 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. Student Records In its response, the School 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). Additionally, the School cites 34 C.F.R. 99 (FERPA related regulations) and 603 CMR 23.00 (Massachusetts student records regulations). In another part of its response, the School states that “the school bus surveillance video footage requested does not meet the FERPA definition of an ‘educational record’ relative to [Mr. Narekiewicz’s] student, and is not part of [his] student’s educational or student record, as the footage at issue does not ‘directly relate’ to [his] student or circumstances directly relating to [his] student.” Where the School has stated that the responsive records are not education records or student records, I find the School has not met its burden to show how the statute and regulations cited by the School would operate to withhold the responsive video from disclosure. Exemption (c) Exemption (c) applies to:

Brenda Theriault-Regan SPR23/1160 Page 4 June 15, 2023 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. 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). When analyzing a privacy claim, there is 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. Under Exemption (c), the School argues the following: [T]he video footage is also exempt from disclosure under the M.G.L. c. 4, Section 7(26)(c) privacy exemption relative to the bus driver, as such footage could be considered a personnel record of the driver, particularly if the footage were to at any point in the future relate or contribute to any discipline or adverse employment action relating to the driver. Based on the School’s response, it is unclear how the video constitutes one of the core categories of personnel records that may be withheld under Exemption (c). It is additionally uncertain how the video, in its entirety, constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Specifically, it is unclear how a public employee, in this case a school bus driver, would have any expectation of privacy in the performance of his/her job. PETA, 477 Mass. at 292. Also, the School did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The School must clarify these matters.

Brenda Theriault-Regan SPR23/1160 Page 5 June 15, 2023 Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. Under Exemption (n), the School argues the following: [T]he video footage is exempt from disclosure under the M.G.L. Section 7(26)(n) ... security exemption, in order to best ensure the safeguarding of students, staff, and the school community. Disclosure of the video footage would result in disclosure of the safety and security measures in place on District school buses, including but not limited to number of video cameras, placement of video cameras, angle and range of video cameras, capabilities and limitations of video cameras, etc., which would aid in circumvention of surveillance efforts, putting

Brenda Theriault-Regan SPR23/1160 Page 6 June 15, 2023 students, staff, and the school community at increased risk and diminished safety/security on school transportation, on school grounds, and in school buildings. Based on the School’s response, it is unclear how the video resembles the records listed under Exemption (n). See PETA, at 289. Where the record bears little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290- 91. Further, the School has not provided sufficient information to conclude that a reasonable person would agree that disclosure of the record is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. The School must clarify these matters. Burden of Specificity The School is advised that under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also 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). Conclusion Accordingly, the School is ordered to provide Mr. Narekiewicz with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Michael Narekiewicz Leslie Crofton Carey, Esq.