Eleonora Bianchi v. University of Massachusetts - Dartmouth (SPR 20241160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records May 2, 2024 SPR24/1160 Ryan C. Merrill Communications & Media Relations University of Massachusetts – Dartmouth Office of Public Affairs 285 Old Westport Road, Room 307A Dartmouth, MA 02747 Dear Mr. Merrill: I have received the petition of Eleonara Bianchi, of the New Bedford Light, appealing the response of the University of Massachusetts – Dartmouth (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 11, 2024, Ms. Bianchi requested, “... H05-01: Student test and examinations of course ‘PSC 251 - World Political Issues & Ideas’ during Fall 2012 and Spring 2013.” Prior Appeal The requested records were the subject of a prior appeal. See SPR24/0986 Determination of the Supervisor of Records (April 16, 2024). In my April 16th determination, it was my understanding that UMass was to provide a further response to Ms. Bianchi. UMass responded on April 16, 2024. Unsatisfied with the response, Ms. Bianchi petitioned this office and this appeal, SPR24/1160, 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 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

Ryan C. Merrill SPR24/1160 Page 2 May 2, 2024 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. UMass’ April 16th response In its April 16, 2024 response, UMass cited Exemption (a) of the Public Records Law to withhold the requested records. 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, UMass cited the Family Educational Rights and Privacy Act (FERPA) to withhold the requested records. “Education records” under FERPA are defined as:

Ryan C. Merrill SPR24/1160 Page 3 May 2, 2024 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. In its response, UMass asserts, “...the records requested are exempt from disclosure under FERPA (20 U.S.C. § 1232g; 34; CFR Part 99). FERPA provides in relevant part that education records are not public 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). The requested records here are clearly student records - confidential, identifiable, student record information for which public disclosure would violate state public records law and federal student records law. For that reason, the appeal should not be allowed.” Although portions of the responsive records may be redacted pursuant to Exemption (a), FERPA, it is unclear how the records may be withheld in their entirety. Specifically, it is unclear how redactions “would not maintain the student’s privacy” as claimed by UMass. Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). UMass must clarify this matter. Conclusion Accordingly, UMass is ordered to provide Ms. Bianchi 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. Ms.

Ryan C. Merrill SPR24/1160 Page 4 May 2, 2024 Bianchi may appeal the substantive nature of UMass’ response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Eleonara Bianchi