Maddie Fabian v. Hampshire Regional School District (SPR 20232948)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2023 SPR23/2948 Diana Bonneville, Ph.D. Superintendent Hampshire Regional School District 19 Stage Road Westhampton, MA 01027 Dear Dr. Bonneville: I have received the petition of Maddie Fabian, of the Daily Hampshire Gazette, appealing the response of the Hampshire Regional School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 5, 2023, Ms. Fabian requested, “[a]ll formal complaints filed against [an identified individual] since August 2022.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2432 Determination of the Supervisor of Records (October 26, 2023). I closed SPR23/2432 based upon the understanding that the District would provide a supplemental response to Ms. Fabian. The District responded on November 7, 2023. Unsatisfied with the response, Ms. Fabian petitioned this office and this appeal, SPR23/2948, 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 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

Diana Bonneville, Ph.D. SPR23/2948 Page 2 December 20, 2023 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The District’s November 7th Response In the District’s November 7, 2023 response, the District identified nine documents responsive to the request. The District stated, “[t]he District asserts that 7 of these records are exempt from disclosure under the public records law under the following exemptions: M. G. L. c. 4, § 7(26)(a)(c) and (f). Two such records are being provided within this response.” The District further states that it would “refer to the records by Records 1-9 and explain the exemptions that are applicable to each such record.” The District produced records 5 and 6. 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. In its response, the District cited the Family Educational Rights and Privacy Act (FERPA), to withhold records 8 and 9. The District stated, “Record 8 and Record 9 contain information that is specifically protected under the Family Educational Rights and Privacy Act (FERPA). ‘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). Record 8 is in specific reference to a named student, disclosure of which would

Diana Bonneville, Ph.D. SPR23/2948 Page 3 December 20, 2023 be a violation of that named student’s rights.” “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. I find that to the extent that portions of the records relate to FERPA and an identified student, the District may permissibly withhold those portions from disclosure. However, it remains unclear how all the requested records constitute student information. The District must clarify if it could redact any nonstudent related information from the records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The District must clarify this matter. 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

Diana Bonneville, Ph.D. SPR23/2948 Page 4 December 20, 2023 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. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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. In its response, the District states that Records 3 and 4 are exempt from disclosure under Exemption (c). The District asserts the following: Record 3 and Record 4 also contains personnel information regarding a number of specific persons. When looking at the balancing test required for exemption c, it must be examined whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The District asserts that redactions to this particular document would not be suitable as the entire document contains personnel information that would not be outweighed by the public interest in this particular record. Based on the District’s response, it is unclear how the records constitute one of the core categories of personnel information useful in making employment decisions regarding an

Diana Bonneville, Ph.D. SPR23/2948 Page 5 December 20, 2023 employee. It is additionally uncertain how the records, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the District did not provide sufficient information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Further, the District must clarify whether segregable portions can be provided. See 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). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass. at 290 n.18. Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. In its response, the District asserted, “Record 1: The District asserts that Record 1 is exempt from disclosure under M. G. L. c. 4, § 7(26)(f)... Record 1 is currently under investigation by a state agency and the District asserts that the disclosure of this document could prejudice the investigation as well as the District’s position relating to the investigation.” The District further asserted that “... Record 2 is exempt from disclosure under M. G. L. c. 4, § 7(26)(f) as well as M. G. L. c. 4, § 7(26)(c). Specifically, Record 2 asserts possible filing at a state agency for investigation. Disclosure would have great potential to prejudice that investigation and/or the District’s response to any such investigation.” The District further asserted, “Record 7 contains items that are currently being investigated by the Committee and as such fall under exemption (f).”

Diana Bonneville, Ph.D. SPR23/2948 Page 6 December 20, 2023 Based on the District’s response, it is unclear how the records are part of the ongoing investigation. It is additionally uncertain whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. Further, the District did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (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). The District must clarify these matters. Additionally, based on the District’s response, it is unclear what types of records it possesses that it is withholding from disclosure. 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). Here, the District withheld responsive records without identifying each of the records. Therefore, the District must identify what type of record(s) it has in its possession that the District withheld under Exemptions (a), (c) and (f). Conclusion Accordingly, the District is ordered to provide Ms. Fabian with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Ms. Fabian may appeal the substantive nature of the District’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Maddie Fabian