Mark Whitney v. Rockport, Town of - Public Schools (SPR 20241411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 23, 2024 SPR24/1411 Amanda Osier Records Access Officer Rockport Public Schools 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/District) 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]. Previous Appeal This request was the subject of a previous appeal. See SPR24/0092 Determination of the Supervisor of Records (January 26, 2024). In my January 26th determination, I ordered the School to clarify its claims under Exemptions (a) and (c) for withholding the responsive records. Subsequently, the School responded on February 9, 2024, reiterating its claims that the responsive records are exempt from disclosure pursuant to the Family Educational Rights and Privacy Act (FERPA), as it operates through Exemption (a) of the Public Records Law, and pursuant to Exemption (c). Unsatisfied with the School’s response, Attorney Whitney further appealed, and this case was opened as a result. Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons 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 SPR24/1411 Page 2 May 23, 2024 in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, neither Attorney Whitney’s status nor that of his clients will play any role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. It is unclear if Attorney Whitney may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Attorney Whitney a greater right of access to the responsive records. 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 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. The School’s February 9th Response In its February 9, 2024 response, the School states the following: The records in the possession, custody and control of the District responsive to the requestor’s request for records that the District intends to withhold under Exemption (a), FERPA, and Exemption (c) are as follows: • Letter dated May 17, 2023, to the Parents of [the individual] from the District’s Title IX Coordinator following a meeting with the Parents (two (2) pages). • Letter dated June 9, 2023, to the Parents of [the individual] from the Dean of Students at Rockport High School regarding the outcome of a bullying investigation (three (3) pages).

Amanda Osier SPR24/1411 Page 3 May 23, 2024 • Investigative notes of the Dean of Students and Athletic Director (fifteen (15) pages). 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). 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”:

Amanda Osier SPR24/1411 Page 4 May 23, 2024 (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). 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 February 9th response, under Exemption (a) and FERPA, the School argues the following: The above-identified records contain information directly related to a student or students and are maintained by Rockport Public Schools, an education agency or institution. The above-identified records contain information of a highly sensitive manner regarding multiple students regarding alleged conduct by those students. Multiple students’ and parents’ names are included in the records, and even if their names were redacted, the records would still contain “personally identifiable information,” namely, “other information that, alone or in combination, would link to a specific student or students that would allow a reasonable person in the school community, who did not have personal knowledge of the relevant circumstances, to identify the student or students with reasonable certainty.” 34 C.F.R. §99.3. As such, the records withheld contain information “directly related” to students and constitute “education records” as defined by FERPA, and, therefore, fall under Exemption (a) of the Public Records Law. M.G.L. c. 4, §7(26)(a). Based on the School’s February 9th response, where the responsive records are directly related to a named student, and are maintained by the School, I find the School has explained how the withheld records are the type of record contemplated under the statutes and regulations cited above. Consequently, I find that the School has met its burden to withhold the responsive records under FERPA as it operates through Exemption (a) of the Public Records Law.

Amanda Osier SPR24/1411 Page 5 May 23, 2024 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 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 this case, where the School has met its burden to withhold the responsive records under FEPRA, as it operates through Exemption (a) of the Public Records Law, I find it is unnecessary to address the School’s arguments under Exemption (c). Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Whitney is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Amanda Osier SPR24/1411 Page 6 May 23, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Mark Whitney, Esq. Kelsey M. Porcello, Esq.