Marion King v. Department of Elementary and Secondary Education (SPR 20242335)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 30, 2024 SPR24/2335 Helene Bettencourt Associate Commissioner Commissioner’s Office Department of Elementary and Secondary Education 135 Santilli Highway Everett, MA 02149 Dear Ms. Bettencourt: I have received the petition of Marion King appealing the response of the Department of Elementary and Secondary Education (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 30, 2024, Ms. King requested, “a list of complaints that have not yet progressed as far as a Letter of Finding and that were initiated on or before May 1, 2024.” Prior Appeal This request was the subject of a prior appeal. See SPR24/2086 Determination of the Supervisor of Records (August 5, 2024). In my August 5th determination, it was my understanding that the Department intended to provide a further response to Ms. King regarding her request. The Department responded on August 16, 2024, withholding the records. Unsatisfied with the response, Ms. King petitioned this office and this appeal, SPR24/2335, 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). 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

Helene Bettencourt SPR24/2335 Page 2 August 30, 2024 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. The Department’s August 16th Response In its August 16, 2024 response, the Department cited Exemptions (c), (d), and (f) of the Public Records Law to withhold responsive records. Current appeal In her appeal Ms. King states, “I am not requesting data that describes the student, parent, advocate or any other individual or individual’s needs or actions. I am requesting the same data that was made available to OSEP in the example provided from November 2023… [1.] Re [Exemption (c)], I specifically requested that the report be redacted as needed. [2.] Re [Exemption (d)], ‘inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency’ are not requested. I am requesting data in spreadsheet format. I am not requesting anything relating to how DESE applies established policies to the facts of the individual complaints, not to mention the ‘development’ of any policies. [3.] Re [Exemption (f)], while fascinating, I find this irrelevant. With all required redactions, there is nothing here that applies.” 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

Helene Bettencourt SPR24/2335 Page 3 August 30, 2024 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 Department stated, “[a]ggregating this data changes the Department’s analysis with respect to application of the privacy exemption in that the risk of an unwarranted invasion of privacy is greater when the amount of information provided to a requestor is increased… PRS complaints often relate to sensitive circumstances involving individual students. When sharing information or data about incidents involving specific students, it is the Department’s obligation to ensure its records do not permit unauthorized inferences about the identities of specific students. The disclosure of ‘all information available in the DESE database’ related to open investigations available to PRS during a set period presents a serious risk of identifying the students, their families, and/or the complainant. The privacy of the identified individual(s) is not substantially outweighed by the public’s interest in the personally identifiable information, and the information is not available from other sources. For this reason, the privacy exemption applies.” Although the Department states it may withhold the responsive records under Exemption (c), the Department has not sufficiently explained its reasoning. It is unclear how all the records contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. The Department must also clarify whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); 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). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably

Helene Bettencourt SPR24/2335 Page 4 August 30, 2024 completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Under Exemption (d), the Department stated, “[d]eliberations related to open PRS complaints frequently involve complex determinations related to law, regulation, guidance, and policy. Disclosure of data related to unresolved PRS matters would invite third-party engagement in policy interpretations and deliberations that is not required nor permitted by law. Specifically, through its PRS state complaint process, the Department has an obligation to ‘[r]eview all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act or of this part’… Disclosing data related to matters where the Department has not yet had an opportunity to reach its independent determination would compromise PRS’s ability to do so without the potential intervention of third parties. As such, data related to open cases where the Department has not made a determination fall under this exemption.” The Department is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Consequently, the Department must clarify whether the records contain any factual information that can be segregated. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a). Further, I find the Department has not established how the records at issue are “inter- agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). The Department must clarify these matters.

Helene Bettencourt SPR24/2335 Page 5 August 30, 2024 Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure ‘would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under Exemption (f), the Department stated the following: PRS staff are the designated investigative officials within the Department responsible for investigating allegations of noncompliance with federal and state education laws within school districts, public schools, educational collaboratives, charter schools, and approved private special education schools… This investigative process allows students, families, and other interested parties to engage in a free dispute resolution mechanism that is initiated by an individual or organization voluntarily filing a complaint with PRS. In this matter, the

Helene Bettencourt SPR24/2335 Page 6 August 30, 2024 Department considers the perspectives of PRS investigators, the public, and the district or school when applying the investigatory exemption. The Department and PRS investigators have an inherent interest in ensuring that this dispute resolution process remains accessible to parents, students, and others. Publicly disclosing data related to open investigations may have a chilling effect on the public’s willingness to come forward to PRS with their allegations the districts’ or schools’ willingness to freely and openly disclose the circumstances surrounding their alleged noncompliance to PRS; and parties’ willingness to engage in dispute resolution. Party engagement is integral to PRS’ ability to investigate allegations of noncompliance. Production of the record [Ms. King] requested compromises meaningful engagement and the Department’s ability to investigate. Thus the investigatory exemption applies to the production of the record that will have a chilling effect on the Department’s ability to confidentially investigate allegations of legal non-compliance concerning individual students and schools. Based on the Department’s response, it is unclear how the records, in their entirety, can be withheld under Exemption (f). The Department did not provide adequate supporting information to demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). In addition, it is not clear from the Department’s response, how the records cannot be redacted to preserve the confidentiality of complainants and voluntary witnesses. The Department must clarify these matters. Consequently, I find the Department did not meet its burden of specificity to withhold the requested records, in their entirety, under Exemptions (c), (d), and (f) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Ms. King with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Marion J. King Patrick Genovese, Esq.