Joseph Morrell v. Needham, Town of - Public Schools (SPR 20232644)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2023 SPR23/2644 Mary Lammi Assistant Superintendent for Student Support Services Needham Public Schools 1330 Highland Avenue Needham, MA 02492 Dear Ms. Lammi: I have received the petition of Joseph Morrell appealing the response of the Needham 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 October 18, 2023, Mr. Morrell requested a paper copy of the survey regarding the MetroWest survey for the Pollard 8th graders. The School provided a response on November 1, 2023. Unsatisfied with the School’s response, Mr. Morrell petitioned this office and this appeal, SPR23/2644, 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 town 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. 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. 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

Mary Lammi SPR23/2644 Page 2 November 16, 2023 The School’s November 1st response In its November 1, 2023 response, the School cited Exemptions (d), (g) and (l) of the Public Records Law to withhold sending a paper copy of the records and invited Mr. Morrell to inspect the records in person. In its response, the School stated: [The School has] contacted the MetroWest Health Foundation for guidance on how best to respond to [Mr. Morrell’s] request. Although they restrict the release of the survey in order to protect the survey’s integrity and the utility of public health data for participating districts, they recommend inviting you to review the survey in person … It is [the School’s] position that the material [Mr. Morrell] request[ed] is exempt from disclosure… As previously indicated, [the School] will make these documents available to view in person believing that this will allow [Mr. Morrell] to receive the information [he is] seeking while preserving the integrity of the survey. Current Appeal In his appeal, Mr. Morrell states: I am writing to appeal the denial of a public records request… [the School] stated[ed] that to protect the integrity of the survey process, [the School’s] protocols prohibit the distribution of paper copies… [the School] stat[ed] that the survey was exempt from a public records request [and] went on to say that I could review the Survey in person… I believe that the Survey is subject to both the Commonwealth of Massachusetts Public Records Law as well as the Federal Freedom of Information Act as the Survey falls under The Protection of Pupil Rights Amendment. This amendment provides parents the right to “inspect” the materials. The amendment does not provide a form in which that inspection may be granted…I respect [the School’s] ability to provide a setting in which a survey can be performed with the upmost integrity, but the initial exemption noted as well as the additional exemptions outlined in [the School’s] letter are not applicable to the Survey. Either the Survey is exempt from public records or it is not. Parents/Guardians have a right, under Federal Law, to inspect the Survey. There are no exemptions under the Commonwealth of Massachusetts’ Public Records statute that can nullify that right to inspect, whether in person or sent via email or USPS. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably

Mary Lammi SPR23/2644 Page 3 November 16, 2023 completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Under Exemption (d), the School stated, “disclosure of the material would taint the integrity of its results.” Based on the School’s responses, I find it has not met its burden of specificity to withhold the records in their entirety pursuant to Exemption (d). The School is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Consequently, the School must clarify whether the records contain any factual information that can be segregated. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Further, I find the School has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). It is additionally uncertain what deliberative process remains ongoing and how disclosure of the records would taint the ongoing deliberative process. The School must clarify these matters. Exemption (g) Exemption (g) applies to: Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of

Mary Lammi SPR23/2644 Page 4 November 16, 2023 confidentiality; but this subparagraph shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit G. L. c. 4, § 7(26)(g). For this exemption to apply to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4) Upon an assurance of confidentiality, (5) Information provided by law, and (6) Information not submitted as a condition of receiving a governmental contract or benefit. The School merely cites Exemption (g) without any further explanation as to how the requested records are exempt from disclosure. The School is not permitted to issue a blanket denial without providing any further information with respect to the requested records. The School is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Thus, I find that the School did not meet its burden to withhold the records under Exemption (g) and the School has not demonstrated that all six criteria have been met. Exemption (l) Exemption (l) permits the withholding of records that are: questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument G. L. c. 4, § 7(26)(l). There are no authoritative Massachusetts decisions interpreting Exemption (l). The general purpose of Exemption (l) is to prevent individuals from gaining an unfair advantage by accessing test questions and test answers prior to the administration of an examination. As long as the same materials are used to administer subsequent examinations, the custodian of records may continue to withhold the materials pursuant to Exemption (l).

Mary Lammi SPR23/2644 Page 5 November 16, 2023 Under Exemption (l), the School states, “while the documents [Mr. Morrell] request[ed] are not tests per se, [Mr. Morrell is] requesting materials used to develop and administer an assessment instrument.” Based on the School’s response it is unclear how the survey constitutes the type of material contemplated under Exemption (l). Specifically, it is unclear how withholding a health survey used to learn about students’ “attitudes and behaviors with regard to a variety of health issues” would allow students to gain an unfair advantage. Conclusion Accordingly, the School is ordered to provide Mr. Morrell 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 the response to this office at pre@sec.state.ma.us. Mr. Morrell may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joseph Morrell