Mark Whitney v. Rockport, Town of - Public Schools (SPR 20240092)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 26, 2024 SPR24/0092 Amanda Osier Records Access Officer School Department Town of Rockport 34 Broadway Rockport, MA 01966 Dear Ms. Osier: I have received the petition of Attorney Mark M. Whitney appealing the response of the Rockport 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 10, 2023, Attorney Whitney requested: The complete investigation files from October 2021 through the present from the Town of Rockport School Department regarding [a named individual]. This includes the report alleging child abuse and/or neglect by Rockport Public Schools (caregivers [two other named individuals]) involving [the individual] and any records from the School Resource Officer pertaining to any investigation from October 2021 through the present regarding [the individual]. The School responded on October 13 and October 24, 2023, citing Exemptions (a) and (c) of the Public Records Law for denying the request. See G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the School’s response, Attorney Whitney appealed, and this case 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 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

Amanda Osier SPR24/0092 Page 2 January 26, 2024 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. Current Appeal In his appeal petition, Attorney Whitney contends the following: [T]he School Department improperly denied access to records that should be public, and that are not entirely exempt under FERPA or privacy laws. For example, the School Department could have shared de-identified records and information related to students; however, it instead denied the entire request outright. Similarly, records of investigations into coaches (adult) do not impact student privacy. This serves as another example of the School Department improperly denying requests outright, rather than tailoring responsive documents to prevent the disclosure of personally identifiable information of students. The School’s October 13th and October 24th Responses In its October 13, and October 24, 2023 responses, the School cites Exemption (a) and Exemption (c) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a), (c). 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).

Amanda Osier SPR24/0092 Page 3 January 26, 2024 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) The Family Educational Rights and Privacy Act is a federal statute and 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). In addition, FERPA provides the following pertinent definition of “education records”: (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). (B) The term “education records” does not include-- . . . (iii) in the case of persons who are employed by an educational agency or institution but who are not in attendance at such agency or institution, records made and maintained in the normal course of business which relate exclusively to such person in that person’s capacity as an employee and are not available for use for any other purpose 20 U.S.C. 1232g(a)(4) (B)(iii).

Amanda Osier SPR24/0092 Page 4 January 26, 2024 The following pertinent definitions are provided in 34 C.F.R. 99.3: Education records. (a) The term means those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution. 34 C.F.R. 99.3. In its response, the School argues that “the requested information is exempt from public release by statute, namely the federal Family Educational Rights and Privacy Act (‘FERPA’). Student records of minor children are also exempt from public release as an unwarranted invasion of privacy.” The School goes on to argue that “investigation files related to students are expressly exempt from public release by FERPA.” The School further argues that “the requested investigative files contain information linked to a specific student and are accordingly exempt from public release under FERPA.” Based on the School’s response, it is unclear how the responsive records constitute “student records” under the statutes and regulation cited above. The School must clarify this. 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 (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

Amanda Osier SPR24/0092 Page 5 January 26, 2024 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 School argues that “in this instance, the investigative files of minor school students are highly personal in nature, and the public interest in obtaining these documents clearly does not substantially outweigh the seriousness of the invasion on the students’ privacy.” Based on the School’s response, it is unclear how the responsive records are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld 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. The School must clarify these matters. Further, it is unclear from the School’s response which specific records the School intends to withhold. The School must identify the records, categories of records, or portions of records it intends to withhold under Exemption (a), FERPA, and Exemption (c). See G. L. c. 66, § 10(b)(iv) (a 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 Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, 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 Attorney Whitney 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. Sincerely, Manza Arthur Supervisor of Records cc: Mark M. Whitney, Esq. Michael J. Joyce, Esq.