Brandon Stokes v. Brockton, City of - Public Schools (SPR 20242846)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 30, 2024 SPR24/2846 Bou Lim Records Access Officer Brockton Public Schools Crosby Administration Building 43 Crescent Street Brockton, MA 02301 Dear Bou Lim: I have received the petition of Brandon Stokes, of 7 News WHDH Boston, appealing the response of the Brockton 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 September 23, 2024, Mr. Stokes requested “surveillance video of a laptop fire inside Brockton High School on Friday 9/20 around 10:15am.” The School responded on October 16, 2024. Unsatisfied with the School’s response, Mr. Stokes petitioned this office, and this appeal, SPR24/2846, 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. 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

Bou Lim SPR24/2846 Page 2 October 30, 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 October 16th Response In its October 16, 2024 response, the School cites G. L. c. 71, § 34D and 603 CMR 23.00 et. seq. as they operate through Exemption (a) of the Public Records Law to withhold the responsive video footage. See G. L. c. 4, § 7(26)(a). 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, 545-46 (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. In its response, the School first cites G. L. c. 71, § 34D, which provides in pertinent part: The board of education shall adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the commonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or any other records concerning such pupil which are kept or are required to be kept.

Bou Lim SPR24/2846 Page 3 October 30, 2024 G. L. c. 71, § 34D. Additionally, 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 (emphasis in original). Further, 603 C.M.R. 23.03 provides limitations and requirements on the collection of data for student records, and provides that: All information and data contained in or added to the student record shall be limited to information relevant to the educational needs of the student. Information and data added to the temporary record shall include the name, signature, and position of the person who is the source of the information, and the date of entry into the record. Standardized group test results that are added to the temporary record need only include the name of the test and/or publisher, and date of testing. 603 C.M.R. 23.03. In its October 16th response, under the statute and regulations cited above, the School argues the following: [A]ny recorded video from September 20, 2024 is being withheld in its entirety based on exemption (a) to the Public Records Law as they are records “specifically or by necessary implication exempted from disclosure by statute.” The specific statute in question is Mass. Gen. L. c. 71, § 34D, which addresses student records. That statute also references student record regulations, 603 CMR 23.00 et. seq., which specifically prohibits the disclosure of student record information to a third party without the specific, informed written consent of the eligible student or the parent. All the requested information would be considered a student record and, therefore, cannot be released. Based on the School’s response, and the definition of student records provided in the regulations above, it is unclear how the requested video recording constitutes a student record. The School must clarify this.

Bou Lim SPR24/2846 Page 4 October 30, 2024 Additionally, it is unclear how the video may be withheld in its entirety. The School must explain whether the video can be redacted, and segregable portions provided. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. at 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). Conclusion Accordingly, the School is ordered to provide Mr. Stokes 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: Brandon Stokes