Michael Narekiewicz v. Tewksbury, Town of - Public Schools (SPR 20231858)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 24, 2023 SPR23/1858 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 W. Narekiewicz appealing the response of the Tewksbury 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 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/1160 Determination of the Supervisor of Records (June 15, 2023). In my June 15th Determination, I ordered the School to clarify its claims under Exemptions (a), (c), and (n) of the Public Records Law for withholding responsive records. Subsequently, the School responded on June 30, 2023. Unsatisfied with the School’s response, Mr. Narekiewicz appealed, and this case was opened as a result. While this appeal was pending, the School provided a supplemental response to Mr. Narekiewicz and this office on August 23, 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 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

Superintendent Brenda Theriault-Regan SPR23/1858 Page 2 August 24, 2023 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 June 30th and August 23rd Responses In its June 30, 2023 and August 23, 2023 responses, the School cites Exemptions (a), (c) and (n) of the Public Records Law for withholding “school bus surveillance video footage.” See G. L. c. 4, § 7(26)(a), (c), and (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). 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

Superintendent Brenda Theriault-Regan SPR23/1858 Page 3 August 24, 2023 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 current and previous responses, under Exemption (a), the School cites a number of statutes and regulations, including 20 U.S.C. § 1232g, 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 . . . 20 U.S.C. § 1232g(b)(1). (4)(A) For the purposes of this section, the term “education records” means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials which-- (i) contain information directly related to a student; and (ii) 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)(A). Under Exemption (a) and the statutes cited above, the School argues that “the video footage does contain visual content otherwise containing personally identifiable information contained in another/other student(s) education record(s).” The School also argues that “in the case of the video recording at issue, the video footage does contain footage in which individual identification of particular student(s) and information of importance to the student(’s/s’) educational process is visible.” Exemption (c) Exemption (c) applies to: 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

Superintendent Brenda Theriault-Regan SPR23/1858 Page 4 August 24, 2023 (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: For certain student(s) on the bus, the disclosure of the video footage at issue could be pieced together with information already or otherwise witnessed or known about the student in the community, leading to assumptions or conclusions about the student(s). The disclosure could thereby lead to infringement upon an individual’s privacy rights relative to any personal information revealed via disclosure of the video footage, particularly because of the possibility that this record would be posted to social media and widely disseminated. 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

Superintendent Brenda Theriault-Regan SPR23/1858 Page 5 August 24, 2023 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 that “Disclosure of the school bus video footage at issue would result in disclosure of the safety and security measures in place on District school buses, which are not only the carriers of school children throughout the community, but also a prime gateway to entrance onto school grounds and into school buildings.” In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions claimed by the School to withhold the responsive video footage, the School must provide this office with an un-redacted copy 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

Superintendent Brenda Theriault-Regan SPR23/1858 Page 6 August 24, 2023 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 responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Michael W. Narekiewicz