Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242267)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2024 SPR24/2267 Janell Summers Records Access Officer Malden Public Schools 215 Pleasant Street Malden, MA 02148 Dear Ms. Summers: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Malden 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 July 26, 2024, the requestor provided a list of emails and sought “the emails in their entirety including attachments … in electronic format and in the format in which they are regularly maintained …” The School responded on August 9, 2024, providing redacted records. Unsatisfied with the School’s response, the requestor petitioned this office and this appeal, SPR24/2267, was opened as a result. While this appeal was pending, the School provided a supplemental response on August 20, 2024. 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. 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

Janell Summers SPR24/2267 Page 2 August 22, 2024 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 August 9th and August 20th Responses In its August 9, 2024 response, the School cited Exemptions (a) and (c) of the Public Records Law and the attorney-client privilege to redact responsive records. In its August 20 , 2024 response, the School further explained the redactions under Exemptions (a) and (c) of the Public Records Law and the attorney-client privilege and additionally cited Exemption (o) of the Public Records Law to redact information. Current Appeal In the appeal petition, the requestor states, “OpenCommonwealth requests that the SPR find and Order [the School] to produce all nonredacted emails in the in the [sic] form and format requested which is not PDF, it is in then [sic] format in which the records are managed and regularly maintained. The [records] illustrate improper redactions…” In response to the School’s August 20th response, the requestor states, “Malden has the burden of proving the existence of an attorney-client relationship. No such burden has been met… Malden has the burden of demonstrating 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, No such burden has been either met nor addressed by the response of the Malden. Malden has the burden of demonstrating that any privilege as to these communications has not been waived… There is no codification nor any case law which states or implies that the School Committee must vote to waive privilege…” Upon review of the appeal, it appears the requestor is not objecting to the School’s claim under Exemption (o). 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).

Janell Summers SPR24/2267 Page 3 August 22, 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) In its response, the School referenced 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. Massachusetts Student Records Regulations Additionally, in its response, the School cites 603 C.M.R. 23.00 et seq. Please note that 603 C.M.R. 23.02 defines “student record” as follows:

Janell Summers SPR24/2267 Page 4 August 22, 2024 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 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. 603 C.M.R. 23.02 (emphasis in original). Additionally, 603 C.M.R. 23.07(4) provides in pertinent part: Access of Third Parties. Except for the provisions of 603 CMR 23.07(4)(a) through 23.07(4)(h), no third party shall have access to information in or from a student record without the specific, informed written consent of the eligible student or the parent. 603 C.M.R. 23.07(4). In its response, the School also cites G. L. c. 71, §§ 34A to 34H. G. L. c. 71, § 34A states the following: Any person operating or maintaining an educational institution within the commonwealth shall, upon request of any student or former student thereof, furnish to him a written transcript of his record as a student. There shall be no charge for any transcript originally furnished by any such person hereunder, but for any duplicate or additional transcript furnished hereunder a charge of not exceeding one dollar for each page, but not exceeding five dollars for an entire transcript, may be made by such person. G. L. c. 71, § 34A In its August 9th response, under the statutes and regulations cited above, the School states that “[the] communications contained personal identifying information of public school students who enjoy mandated confidentiality; indeed, such documents, if released, would reveal the identities, disabilities and information on their educational programming. Further, since legal counsel is counseling [the School] on the educational services and programming that is providing to students, especially special education students these records should be deemed exempt from Public Records Law disclosure under Exemption (a) because, as supported by Champa, state and federal regulations compel the [the School] to protect educational records from disclosure. Specifically, they are protected by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00.”

Janell Summers SPR24/2267 Page 5 August 22, 2024 In its August 20th response, the School states, “in terms of the first email, dated December 6, 2019 between [named individuals], the sentence redacted was relative to a request for student records of a particular student who was named. As result, this email was redacted for student record information.” Based on the School’s response, it is unclear how the entire sentence constitutes student records that can be withheld under the above referenced statutes and regulation. The School must clarify this matter. 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. G. L. c. 4, § 7(26)(c). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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).

Janell Summers SPR24/2267 Page 6 August 22, 2024 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), in its August 9th response, the School stated, “[i]n this case, personal emails were redacted pursuant to this guidance under Exemption (C). Furthermore, information on an employee’s medical condition was redacted. In terms of the balancing test, information on an employee’s health condition does not relate to the performance of official governmental functions. The individual employee’s right to have their health information protected outweighs any public interest in the information. Finally, the name of members of the public were redacted. Again, there is no public interest in terms of the functioning of the government of knowing the names of the general public. The privacy of those individuals in reaching out to the government overrides the public interest in knowing their name.” In its August 20th response, the School stated, “the name of requestors was redacted under Exemption (c). The nature of the request and the provision of the information was not redacted. However, there is no public interest in knowing the name of an individual in terms of the functioning of the government. Additionally, under exemption (C) personal information on employee’s work schedule and life events was redacted as the privacy interest in the employee keeping that information confidential far outweighs the public interest in knowing their individual circumstance. Links that would allow someone to active a school account were redacted to keep access to school accounts secure. Finally, the name of an individual employee who provided her laptop and charger was redacted. There is no public interest in knowing the individual employee’s name. The fact that [a named individual] had a laptop and charger is disclosed in those emails.” To the extent the records contain medical information, the School may permissibly withhold such portions from disclosure. However, it is unclear how the names of requestors, employees work schedule and life events, and the name of an employee are intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the School did not provide supporting 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. 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.

Janell Summers SPR24/2267 Page 7 August 22, 2024 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 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). Under the attorney-client privilege, the School stated, “the records contained the content of discussions between the [School] and its attorneys, for purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege… In this case, the correspondence was only with Malden staff and their attorneys for soliciting legal advice. The school committee never voted to waive the privilege and the documents have not been released.” In its August 20th response, the School stated the following: [I]n terms of the email dated March 2, 3020, [sic] between [named individuals], the information redacted was the content of legal advice given to these employees by the attorney at the time helping with the public records request... The last sentence refers to providing the information to [a named attorney]. As stated in the response, the school committee never voted to waive that privilege and the content of the advice remained confidential between Malden school employees. [I]n terms of the email, latest appeal by, dated April 23, 2020 between [a named individual] and other employees, the email in the chain shows that there was an email from [a named attorney] giving legal advice. [A named individual] forwarded that message and provided information on that legal advice. Employees of Malden are not third parties. As stated in the response, the school committee never voted to waive that privilege and the content of the advice remained confidential between Malden school employees. In this case, although portions of the emails were redacted, the School has left intact the information required under G. L. c. 66, § 10A(a), including the dates, the names of the author and recipients, and information regarding the subject of each entry. Upon review, the School has satisfied the requirement that the communications were received from an attorney during the course of the School’s search for legal advice from the attorney in his or her capacity as such.

Janell Summers SPR24/2267 Page 8 August 22, 2024 Further, the School has satisfied the requirement that the communications were made in confidence, because the School explained in its August 20th response that “the content of the advice remained confidential between Malden school employees.” Finally, the School has satisfied the requirement that the privilege as to these communications has not been waived, because the School stated in its August 9th response that “the school committee never voted to waive the privilege and the documents have not been released.” Additionally, the School stated in its August 20th response that “the school committee never voted to waive that privilege…” Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of the requestor’s appeal, I find the School must clarify whether the responsive records can be provided in the format that was requested. The School must clarify this matter. Conclusion Accordingly, the School is ordered to provide the requestor 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: Commonwealth Transparency