Kenneth M. Chiarello v. Swampscott, Town of - Public Schools (SPR 20240625)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 13, 2024 SPR24/0625 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. Prior Appeals This request was the subject of prior appeals. See SPR23/2755 Determination of the Supervisor of Records (November 28, 2023) and SPR24/0031 Determination of the Supervisor of Records (January 18, 2024). In my January 24th determination, it was my understanding that the School intended to provide a further response. The School responded on February 1, 2024. Unsatisfied with the response, Attorney Chiarello petitioned this office and this appeal, SPR24/0625, 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 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 SPR24/0625 Page 2 March 13, 2024 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. The School’s February 1st Response In its February 1, 2024 response, the School cited Exemptions (a) and (c) of the Public Records Law and the attorney-client privilege to redact responsive records. Current appeal In his appeal, Attorney Chiarello states: [the School]’s statement that “[i]n fact, other than complaints from the Requestor, [the School] has not received any complaints against the baseball coach since the season ended eight (8) months ago” is… false… The production of a Privilege Log does not establish an attorney-client relationship or an attorney-client privilege. [The School] has failed to establish an attorney-client relationship, has failed to establish that the communications were received from a client during the course of the client’s search for legal advice from the attorney in the attorney’s capacity as such, has failed to establish that the communications were made in confidence, and has also failed to establish that the privilege as to those communications have not been waived… The remaining issues are (1) whether the anonymous emails and letter are protected by Exemptions (a) and (c), (2) whether [the School] has established that the redacted emails are protected by the attorney-client privilege and, if so, (3) whether [the School] has waived the attorney-client privilege…” Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); see also Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce

Superintendent Pamela Angelakis SPR24/0625 Page 3 March 13, 2024 detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its February 1st response, the School provided a privilege log referencing several emails. I find that the School has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the School must clarify that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such and that the communications were made in confidence and that the privilege as to these communications has not been waived. Additionally, in light of Attorney Chiarello’s appeal rebutting the School’s claim that there are no additional complaints, it is unclear if the School possesses additional records that may be responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that responsive records exist, I find the School must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The School must clarify these matters. 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

Superintendent Pamela Angelakis SPR24/0625 Page 4 March 13, 2024 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 School cited the Family Educational Rights and Privacy Act (FERPA) as applicable to redact the requested records. “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: [The School] redacted under Exemption (a)… certain information protected from disclosure under FERPA as “personally identifiable information”, including the following: The student’s name; The name of the student’s parents or other family member; The address of the student or student’s family; Home addresses, phone

Superintendent Pamela Angelakis SPR24/0625 Page 5 March 13, 2024 numbers and certain emails; 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; and information about student academic and/or disciplinary records.” In addition to the above reason, it should be noted that 603 CMR 23.02 provides a broad definition of a Student Record: “ Student Record shall consist of the Transcript and the Temporary Record, including all information -- recording and computer tapes, microfilm, microfiche, or any other materials -- regardless of physical form or characteristics concerning a student that is organized on the basis of the student’s name or in a way that such student may be individually identified, and that is kept by the public schools of the Commonwealth. The term as used in 603 CMR 603 CMR: DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION 23.00 shall mean all such information and materials regardless of where they are located, except for the information and materials specifically exempted by 603 CMR 23.04.” Clearly, this includes not only information about a student’s academics and or medical history issues, but also issues related to a student’s participation in school athletics. Obviously, with a small team, it would be easy to identify a particular student athlete if only their names were redacted. For all of these reasons, certain student information and records was protected from disclosure under FERPA. 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. 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.

Superintendent Pamela Angelakis SPR24/0625 Page 6 March 13, 2024 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. Under Exemption (c), the School states: The main complaint(s) against the baseball coach pertaining to this records request were filed either anonymously and/or by the Requestor. In fact, other than complaints from the Requestor, the School District has not received any complaints against the baseball coach since the season ended eight (8) months ago. Although a written formal report was ultimately deemed unnecessary under these circumstances, the complaints were thoroughly reviewed and found to be unsubstantiated and unfounded. The review included six (6) students being interviewed, one additional student meeting with the Athletic Director on his own because he was upset that these allegations were even being made, and numerous additional past players, parents, and youth sports officials voluntarily reaching out unsolicited by phone and/or emails to voice their support for the baseball coach. As opposed to the arguments being made by the Requestor in the instant appeal, disclosing documents containing unsupported and unfounded personnel allegations against an employee that could damage their entire reputation and career of course must be weighed and analyzed in determining whether or not to

Superintendent Pamela Angelakis SPR24/0625 Page 7 March 13, 2024 disclose such information… …since the allegations are primarily coming from either “an anonymous source”; and/or the Requestor, who is hardly a disinterested party. A public employee, such as a coach, does not have a total expectation of privacy. However, a coach’s career should not be ruined every time an “anonymous” or disillusioned or unrealistic parent with ulterior motives makes an allegation that is determined to be unfounded. Moreover, the Requestor’s argument that the redactions are not the “names of a specifically named individual” is irrelevant when everyone knows who the baseball coach is and the nature of the unfounded and/or anonymous allegations are damaging to the employee’s entire professional reputation. Personnel information that can be exempted is far broader than just an employee’s name and may include potential disciplinary allegations… … The entire subject matter of the complaint contained “personnel” allegations that were highly “personal”, embarrassing and damaging in nature. Simply redacting the name of the baseball coach would be meaningless when everyone in Town knows exactly who the coach is. It would be dangerous if every time an unrealistic student athlete’s parent became upset about issues such as playing time, which happens often, that such parent could subject a coach to personal embarrassment and permanent damage by having unfounded (anonymous or otherwise) allegations publicly disclosed – especially where simply redacting the name of the coach would not offer any sufficient protection from such embarrassment or invasion of privacy. In camera inspection In order to facilitate a determination as to the applicability of the Exemptions (a) and (c) claims made by the School to redact the responsive records, the School must provide this office with an un-redacted copy of the records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the School’s custody and issue an opinion on the public or exempt nature of the record. 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).

Superintendent Pamela Angelakis SPR24/0625 Page 8 March 13, 2024 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 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 regarding the Exemptions (a) and (c) claims for in camera inspection without delay. Additionally, the School is ordered to provide the Attorney Chiarello with a response to the request regarding the claims of attorney-client privilege and whether additional records exist, 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. 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. Darren Klein, Esq.