Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242600)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2024 SPR24/2600 Janell Summers Record 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…” Previous Appeal This request was the subject of a previous appeal. See SPR24/2267 Determination of the Supervisor of Records (August 22, 2024). In my August 22nd Determination, I ordered the School to clarify whether the records could be provided in the preferred format of the requestor. I also found that the School met its burden under the attorney-client privilege to withhold some records, and ordered the School to clarify its claims for withholding and redacting others. The School responded on September 6, 2024. Unsatisfied with the School’s response, the requestor appealed, and this case, SPR24/2600, 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

Janell Summers SPR24/2600 Page 2 September 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. Att’y 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. See 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. Current Appeal In the appeal petition, the requestor states: Malden continues to withhold the names of requestors, employees work schedule and life events. Again, claiming that 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. Malden uses these gross overstatements and protectionist methods to attempt to withhold and/or create a fee-based methodology to thwart public records requests. They complain and allege ad-nauseum that OpenCommonwealth files frivolous appeals with the SPR and that the appeals have no merit and only serve to harass and intimidate. Again here we have repeated examples of successful appeals, with findings and Orders which compel Malden to comply with the public records law, where they failed to do so on their own volition and intervention from the SPR is both necessary and important for the requestors of Malden’s public records to receive the records requested. 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’s August 9th, August 20th and September 6th 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. In its September 6, 2024 response, the School provided more information regarding the redaction of an entire sentence under Exemption (a), the redaction of names and work schedules under Exemption (c), and the preferred format of requested records.

Janell Summers SPR24/2600 Page 3 September 30, 2024 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 the School’s September 6th response, the School states, “Malden can provide responsive emails, which are not redacted in your preferred format. They are attached in the Zip file.” In a telephone call between a staff attorney of the Public Records Division and the School on September 27, 2024, the School confirmed that it provided responsive emails without redaction in the requestor’s preferred format. Consequently, I find that this portion of the requestor’s appeal is resolved. 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.

Janell Summers SPR24/2600 Page 4 September 30, 2024 Family Educational Rights and Privacy Act (FERPA) In the School’s August 20th response, it references the Family Educational Rights and Privacy Act 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 August 20th 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: 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.

Janell Summers SPR24/2600 Page 5 September 30, 2024 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 September 6th response, the School states: In terms of the full sentence in the email dated December 6, 2019, the full sentence needed to be redacted because the content of the sentence relative to the request in addition to having the student’s name contained information on the nature of a dispute that the student’s parent had with the school district. The district believes that if that information is not redacted, the student would be identifiable. 34 CFR 99.3 states that information is personally identifiable if: (f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school 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. Thus, the full sentence was redacted to protect the identity of the student. Based on the information provided in the School’s September 6th response, where the redacted information would identify a student, I find that the School has met its burden to demonstrate that the information is the type of record contemplated under 34 C.F.R. § 99.3. Accordingly, the School may properly redact the email under the statutes and regulations cited above, as they operate through Exemption (a). 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).

Janell Summers SPR24/2600 Page 6 September 30, 2024 Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. 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). 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. Under Exemption (c), in its September 6th response, the School states: In terms of the request for public records, the District will disclose the identity of the requester. The only name redacted was [the requestor’s] name. In terms of the employee, the name redacted was [named individual]. In terms of the redactions on employee’s life and work schedules, it relates to employees taking leave for health reasons. As the Supervisor stated in its decision, 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). In this case the life and work schedule information related to medical information and therefore was appropriately redacted.

Janell Summers SPR24/2600 Page 7 September 30, 2024 In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claims made by the School to redact the responsive records, the School must provide this office with un- redacted copies of the records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the School’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the School is ordered to provide this office with un-redacted copies of the responsive records regarding Exemption (c) for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency