Kenneth M. Chiarello v. Swampscott, Town of - Public Schools (SPR 20232755)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 28, 2023 SPR23/2755 Superintendent Pamela Angelakis Swampscott Public Schools School 207 Forest Avenue Swampscott, MA 01907 Dear Superintendent Angelakis: I have received the petition of Attorney Kenneth Chiarello appealing the response of the Swampscott 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 September 1, 2023, Attorney Chiarello requested various documentation relating to two named individuals and about the Swampscott High School Baseball Program. The School responded on October 24, 2023. Unsatisfied with the response, Attorney Chiarello petitioned this office and this appeal, SPR23/2755, 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(d)(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…”); 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). 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

Superintendent Pamela Angelakis SPR23/2755 Page 2 November 28, 2023 The School’s October 24th Response In its October 24, 2023 response, the School cited Exemptions (a) and (c) of the Public Records Law to redact and withhold responsive records. Current appeal In his appeal, Attorney Chiarello states, “[the School] redacted and withheld certain information and documentation pursuant to exemptions (a) and (c), but [the School]’s response did not specifically identify any of the documents that were withheld, and redacted material information not protected by the asserted exemptions…” 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. Family Educational Rights and Privacy Act (FERPA) In its response, the City referenced the Family Educational Rights and Privacy Act (FERPA) as applicable to withhold the requested records or information.

Superintendent Pamela Angelakis SPR23/2755 Page 3 November 28, 2023 “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. When citing FERPA in its response, the School states, “some responsive records or material contained therein implicate confidential information concerning specifically-named students, the disclosure of which may implicate those individuals’ or their family members’ privacy interests under [FERPA]… Similarly, certain records that contain information protected from public disclosure pursuant to G.L. 93H… Accordingly, some responsive records have also been redacted or withheld for the reasons set forth in this paragraph as to disclose such records may constitute and unwarranted invasion of those individuals’ personal privacy.” FERPA provides a mechanism which allows for the public disclosure of information from education records when information classified as personally identifiable information is removed. As indicated above, under 34 C.F.R. 99.3 personally identifiable information includes, but is not limited to, student’s name; name of the student’s parents or other family member; address of the student or student’s family; a personal identifier, such as the student’s social security number, student number, or biometric record; 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 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.

Superintendent Pamela Angelakis SPR23/2755 Page 4 November 28, 2023 Based on the Schools response, it is unclear what information or records have been redacted and withheld, and how the redacted and withheld information constitutes personally identifiable information as described in the statute. In addition, the School did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (a). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The School must clarify these matters. Exemption (c) Exemption (c) permits the withholding of: 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires 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.

Superintendent Pamela Angelakis SPR23/2755 Page 5 November 28, 2023 Under Exemption (c), the School states, “[the School] has reviewed the information under the [Exemption (c)] test and determined that privacy interests exists that merit that certain information be withheld or redacted under Exemption (c).” The School’s response did not did not contain the specificity required in a denial of access to public records. Based on the School’s response, it is unclear how the redacted portions of the records contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. 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. In addition, the School did not identify the records, categories of records or portions of records in its possession that it redacted from the records or withheld from disclosure under Exemption (c). The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide the Attorney Chiarello 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. The Attorney Chiarello 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: Kenneth Chiarello, Esq.