Kent DeMott v. Leominster, City of - Public Schools (SPR 20243115)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 3, 2024 SPR24/3115 Laura VanDorn Special Education Director Leominster Public Schools 24 Church Street Leominster, MA 01453 Dear Ms. VanDorn: I have received the petition of Kent DeMott appealing the response of the Leominster 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 4, 2024, Mr. DeMott requested, “any and all communications with and between [an identified individual], . . . Valleyview Road, Leominster, MA, and any and all Leominster Massachusetts school department employees, contractors, bus drivers, agents and similar, which occurred at any point in time and were made in or by any and all manners possible.” The School provided a response on September 18, 2024. Unsatisfied with the School’s response, Mr. DeMott petitioned this office and this appeal, SPR24/3115, 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

Laura VanDorn SPR24/3115 Page 2 December 3, 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 September 18th Response In its September 18, 2024 response, the School provided links to two websites and stated, “[p]ublic information responsive to your request including district wide communications can be found at [the two links].” The School additionally cited Exemptions (a) and (c) of the Public Records Law to withhold certain requested records. Current Appeal In his appeal petition, Mr. DeMott argues that the School “states that the . . . [provided links] are responsive to petitioner’s request. We disagree. The request clearly indicates [‘]...all communications with [an identified individual…[’]” He further contends that his request “clearly reasonably identifies the public records sought” and “clearly states the period of time for the records being sought[.]” Mr. DeMott additionally asserts that the School’s “statement that the request is [‘]unduly burdensome[’] is unsubstantiated” and that the School’s claim of “the Family Educational Rights Act, or any other similar statute or regulation, is inappropriate.” 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

Laura VanDorn SPR24/3115 Page 3 December 3, 2024 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, under Exemption (a), the School cited the Family Educational Rights and Privacy Act (FERPA), to withhold the requested records. Specifically, the School stated that FERPA “prohibits the disclosure of personally identifiable information (PII) regarding students to third parties. 20 U.S.C. §1232g (a)(4)(A); 34 C.F.R. 99.3.” “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. In its response, the School stated, “[i]t is the [School’]s position that the requested documents are student records and contain PII related to individual students. Therefore, the [School] declines to produce the requested records.” 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.

Laura VanDorn SPR24/3115 Page 4 December 3, 2024 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 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. In its response, the School contended that “. . . G.L. c. 4 §7(26)(c) applies to [the] . . . request because the [School] is required to withhold any materials relating to specifically named individuals for which the disclosure may constitute an unwarranted invasion of personal privacy. G.L. c. 4 §7(26)(c).” The School further indicated, “[i]t is important to note that this duty is not specific to student records, but rather, applies to any student record information or material that exposes private information.” Additionally, in its response, the School cited Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals and stated the following: Your request for records does not reasonably describe the public records sought; therefore, the District is not able to further respond.Here, you fail to identify the names of the individuals employed by the school district including the contractors, bus drivers, and agents included on the communicait[i]ons you seek in your request making it impossible for the [School] to respond. Your request is not specific enough that the [School] is able to reasonably identify the requested documents given the broad sweeping nature of your request including your failure to identify a period of time for the communciations [sic] you seek. Moreover, your request did not include information “sufficient to allow a professional

Laura VanDorn SPR24/3115 Page 5 December 3, 2024 employee…who was familiar with the subject area of the rqeuest [sic] to locate the record with a reasonable amount of effort.” In Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. In addition, please be aware that the request must reasonably describe the specific records sought. See G. L. c. 66, § 10(a)(i). In a recent case, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019). This office encourages Mr. DeMott and the School to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to

Laura VanDorn SPR24/3115 Page 6 December 3, 2024 modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion If outstanding issues remain after Mr. DeMott and the School communicate further as described above, Mr. DeMott may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kent DeMott