Zianette Frost v. Sharon, Town of - Public Schools (SPR 20242671)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 2, 2024 SPR24/2671 Joel Jocelyn, Ed.D. Assistant Superintendent Sharon Public Schools 75 Mountain Street Sharon, MA 02067 Dear Dr. Jocelyn: I have received the petition of Zianette Frost appealing the response of the Sharon 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 August 5, 2024, Ms. Frost requested, “any complaints from parents about their experiences at East, relevant to bullying, retaliation, hostility or discrimination over the past 5 years.” On August 16, 2024, Ms. Frost narrowed her request to “where only [a named individual] is the party accused of bullying, harassment, retaliation and/or discrimination.” Additionally, Ms. Frost stated, “I am interested in only dates of complaints. If there are multiple emails from the same individual, this request will be satisfied with just one email per distinct individual per school year. You can redact everything except the name/emails of SPS staff members and the dates the report was received.” The School responded on August 29, 2024, withholding records. Unsatisfied with the School’s response, the requestor petitioned this office and this appeal, SPR24/2671, 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). 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. 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

Joel Jocelyn, Ed.D. SPR24/2671 Page 2 October 2, 2024 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 August 29th Response In its August 29, 2024 response, the School cited Exemptions (a) and (c) of the Public Records Law to withhold records and stated, “[the School] possesses one complaint dated July 7, 2024.” Additionally, in an email sent on September 11, 2024, the School stated, “[a]s the District is not withholding any attorney-client communications, privilege logs will not be provided.” Current Appeal In the appeal petition, Ms. Frost states, “[t]he RAO refused to respond with any records, even after I offered to narrow my request. The RAO claims all the matching records are exempt, though he has refused to give me a privilege log. I would like to appeal and to receive a privilege log with a list of all matching records that are being withheld.” 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.”

Joel Jocelyn, Ed.D. SPR24/2671 Page 3 October 2, 2024 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 withhold the requested records or information. “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: 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

Joel Jocelyn, Ed.D. SPR24/2671 Page 4 October 2, 2024 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, under the statutes and regulations cited above, the School stated, “[t]he requested documents contain substantial amounts of direct/personal identifiers and indirect identifiers that would allow the students to be identified and therefore the documents fall within the definition set forth in 34 CFR § 99.3. The District has no authorization to release these documents to [Ms. Frost]. Moreover, the District is not able to segregate the documents because the documents contain content exempt under this Exemption or Exemption (c)…” Based on the School’s response, it is unclear what information has been withheld, and how the redacted information constitutes the type of information described in the above statutes or regulations. In addition, the School did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (a). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The School must clarify these matters. 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). 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.

Joel Jocelyn, Ed.D. SPR24/2671 Page 5 October 2, 2024 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. Under Exemption (c), the School states the following: The documents contain information to specifically named individuals, particularly elementary age children, the disclosure of which constitutes an unwarranted invasion of their personal privacy. … [T]he public interest does not substantially outweigh the seriousness of the invasion of privacy addressed below. If these complaints were disclosed, it would create dissension between parties to resulting investigations and potentially create stigma against targets of such behaviors. The District maintains a Bullying Plan and non-discrimination policies to address the public interest in how those complaints are handled. Accordingly, the public interest in obtaining these documents does not substantially outweigh the seriousness of any invasion of privacy. … Here, the PETA balancing test results in a finding that disclosing these categories of information would constitute an unwarranted invasion of privacy. As to the first element, disclosure of information concerning experiences of bullying, retaliation, hostility and discrimination would result in personal embarrassment to an individual of normal sensibilities. Disclosure of these types of experiences can subject individuals to stigma, and this is especially true for elementary-age students given their level of vulnerability. The District specifically provides methods of reporting these complaints in a way to maintain their confidentiality and limit any resulting embarrassment, stigma or retaliation.

Joel Jocelyn, Ed.D. SPR24/2671 Page 6 October 2, 2024 As to the second element, the materials contain intimate details of a highly personal nature. As addressed above, complaints of experiences of bullying, retaliation, hostility and discrimination are the exact types of details that can potentially lead to stigma and impact an individual’s reputation… It is also well- settled that information about a child’s educational needs and progress “is highly personal, and disclosure may result in embarrassment and potentially lead to stigma, bringing it within the scope of exemption (c).” Champa v. Weston Public Schools, 473 Mass. 86, 97 (2015). As to the third element, if [Ms. Frost has] ever filed a complaint that would fall within the scope of [her] request then that information is already available to [her], or if [she knows] someone that has filed such a complaint they may be willing to share it with [her]. It is unclear how the withheld records, in their entirety, contain 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 this information is available from other sources. PETA, 477 Mass. at 292. The School must clarify these matters. 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: Zianette Frost