Brandon Stokes v. Westborough, Town of - Public Schools (SPR 20241200)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 6, 2024 SPR24/1200 Daniel Mayer, Ed.D. Records Access Officer Westborough Public Schools 45 West Main Street Westborough, MA 01581 Dear Dr. Mayer: I have received the petition of Brandon Stokes, of 7NEWS WHDH Boston, appealing the response of the Westborough Public Schools (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 14, 2024, Mr. Stokes requested the following records: [1.] ... all video related to an incident on 3/14/24 in which a school bus driver is accused of driving drunk with students on board. [2.] This request should include but not be limited to video from on board the bus as well as any video from the bus depot on 3/14/24 showing the driver involved. Prior Appeal The requested records were the subject of a prior appeal. See SPR24/0830 Determination of the Supervisor of Records (April 2, 2024). In my April 2nd determination, it was my understanding that the School was to provide a further response to Mr. Stokes. The School responded on April 3, 2024. Unsatisfied with the response, Mr. Stokes petitioned this office and this appeal, SPR24/1200, 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, § 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

Daniel Mayer, Ed.D SPR24/1200 Page 2 May 6, 2024 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. The School’s April 3rd response In its April 3, 2024 response, the School stated, “... [the] District possesses a record responsive to your request.” The School claimed Exemptions (a) and (c) of the Public Records Law to withhold the requested record. 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.

Daniel Mayer, Ed.D SPR24/1200 Page 3 May 6, 2024 In its response, the School cited the Family Educational Rights and Privacy Act (FERPA) to withhold 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. In its response, the School asserted, “[t]he document contains information about students, particularly video footage, that would allow them to be identified and therefore falls within the definition set forth in 34 CFR § 99.3. The District does not have the ability to redact this content/ information from the record, and does not have authorization as required to release this information.” To the extent that the records contain information related to students, the School may withhold those portions from disclosure. However, it remains unclear how the School cannot redact any nonstudent related information from the record. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The School must clarify this matter. 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

Daniel Mayer, Ed.D SPR24/1200 Page 4 May 6, 2024 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. 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 School asserts, “[t]he document contains personnel information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The School further asserted, As to the first element, disclosure of information concerning alcohol consumption would result in personal embarrassment to an individual of normal sensibilities,

Daniel Mayer, Ed.D SPR24/1200 Page 5 May 6, 2024 particularly in the employment context. In a March 19, 2024 communication to the Supervisor of Public Records, you included statements from Superintendent Bock and NRT Bus concerning the incident which addressed alcohol consumption and certain personnel actions resulting from the incident, which clearly demonstrate that this record would personally embarrass an individual of normal sensibilities if disclosed. As to the second element, the materials contain intimate details of a highly personal nature. It is well-settled that such intimate details include medical conditions, alcohol consumption and reputation ... As to the third element, the same information contained in the record has been made available in the March 14, 2024 email communication from [an identified individual] that you possess and can similarly be obtained through a request to the District’s bus company. Despite the School’s response, it remains unclear how the record constitutes intimate details of a highly personal nature. It is additionally uncertain if the record is available from other sources. Further, the School did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Additionally, the School 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). Conclusion Accordingly, the School is ordered to provide Mr. Stokes 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. Mr. Stokes 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: Brandon Stokes