Ellen A. Crowley v. Department of Elementary and Secondary Education (SPR 20250040)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 17, 2025 SPR25/0040 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 Attorney Ellen Crowley, on behalf of the Greater Lowell Technical High School, 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 November 14, 2024, Attorney Crowley requested, “the individual demographic data (e.g. race/ethnicity (students of color), national origin, gender identity, sexual orientation, religion, disability status, English learner status, and low-income status, etc.) of each applicant to the District beginning with the 2021-2022 school year to the present.” The Department provided a response on December 10, 2024. Unsatisfied with the response, Attorney Crowley petitioned this office and this appeal, SPR25/0040, was opened as a result. Subsequent to the opening of this appeal, the Department provided an additional response on January 16, 2025. 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 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 Betterncourt SPR25/0040 Page 2 January 17, 2025 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 Department’s Responses In its December 10, 2024 response, the Department cited Exemptions (a) and (c) of the Public Records Law to withhold responsive records. Additionally, the Department stated, “[f]urthermore, the Department has no record responsive to your request and no obligation to create new records pursuant to requests for public records. Creating the record [Ms. Crowley] describes[s] would require more than segregation of data contained in an existing database; the Department would need to compare and match individual data sets contained in separate databases, then combine and similarly format the data so it could be placed together into a new record.” Additionally, in its January 16, 2025 response, the Department stated the following: Please note that the District does not refute the Department’s application of the privacy exemption, FERPA, FIPA, or Massachusetts Public Record Regulations, nor does it assert that the Department has an obligation to create a new record. … However, the Department maintains its position on this matter. The timeliness of the Department’s response does not invalidate the application of the aforementioned laws and regulations to the requested record. Regarding the District’s need to understand trends in its admissions and applications, the Department directs the District to the Department’s publicly available enrollment data, which is inclusive of data specific to individual member towns and located on the Department’s website here: CTE Enrollment Trends. The District may also want to contract a third-party researcher to perform certain analysis on the District’s behalf without sharing student-level, personally identifiable information. The third-party researcher would be required to submit a research application for the data, which include provisions to protect student privacy and would be subject to the Department’s approval prior to receiving the data. Current appeal In her appeal, Attorney Crowley states the following: The background in this matter is relevant. The Department requested Greater Lowell to submit a revised admissions policy that makes the admissions process

Helene Betterncourt SPR25/0040 Page 3 January 17, 2025 more inclusive for all learners, such as changing some “scoring” in certain criteria areas for applicants. Otherwise, The Department may impose a lottery system. The Department issued a deadline of November 22, 2024. The Department further required the Superintendent to “attest” that the policy does not cause any disproportionality in the enrollment at Greater Lowell and make specific attestations to various groups of learners. In order to write a policy (and attest to it) that is specific to Greater Lowell and its three sending communities, Greater Lowell reasonably sought demographic admissions data from the Department so it could understand the trends in who is applying to Greater Lowell. It needs to understand the trends in admissions and applications so it can work with sending districts and write a data-driven policy. Furthermore, it is crucial for Greater Lowell to understand the demographic information for the applicants who are on its waitlist. However, the Department did not timely share admissions and enrollment data with Greater Lowell as requested. Greater Lowell submitted a timely policy and will have to use trial and error to determine if the policy has the intended impacts, unless The Department shares the requested records. 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.” 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.

Helene Betterncourt SPR25/0040 Page 4 January 17, 2025 Family Educational Rights and Privacy Act (FERPA) In its response, the Department 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. When citing FERPA in its response, the Department states, “[i]n your November 14, 2024 letter, [Attorney Crowley] assert[s] that the disclosure of this data would not violate FERPA because the data is ‘necessary to comply with Federal legal requirements.’ The Department disagrees. The exemption to FERPA described in your letter, 34 CFR § 99.35, does not apply in this matter because the disclosure of this data to you is not necessary for compliance with the federal legal requirements. The Department relies on enrollment demographics, not application data, when making findings under the Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National Origin, Sex and Handicap in Vocational Education Programs (federal Guidelines). Providing you with the data you requested would violate FERPA.” FERPA provides a mechanism which allows for the public disclosure of information from education records when information classified as personally identifiable information is removed. As indicated above, under 34 C.F.R. 99.3 personally identifiable information includes, but is not limited to, student’s name; name of the student’s parents or other family member;

Helene Betterncourt SPR25/0040 Page 5 January 17, 2025 address of the student or student’s family; a personal identifier, such as the student’s social security number, student number, or biometric record; 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 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. Based on the Department’s response, it is unclear what information has been withheld, and how the withheld information constitutes personally identifiable information as described in the statute. Additionally, it is unclear how the records can be withheld in their entirety and why segregable portions cannot be provided. The Department must clarify these matters. Fair Information Practices Act (FIPA) Under Exemption (a) and FIPA, the Department argues that “[h]olders of personal data ‘shall . . . not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized.’ G.L. c. 66A, § 2. As the holder of the personal data you requested, the Department is prohibited from disclosing it to you, because you are not authorized to receive it.” Please be advised that FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Att’y Gen. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that “determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. 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).

Helene Betterncourt SPR25/0040 Page 6 January 17, 2025 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. Under Exemption (c), the Department states the following: [T]he Department understands that you are also requesting a record containing demographic data for individual student applicants to your school. We have carefully considered your request and must decline it for the following reasons. First, the data you requested is exempt from public disclosure pursuant to the privacy exemption to public records law, G.L. c. 4, § 7(26)(c), because it risks identifying and disclosing sensitive details about individual student applicants who were not admitted to your school… The data you requested consists of each applicant’s race, income level, special education and English learner status, and more. The disclosure of this information presents a high risk of identifying individual students. Disclosing these details about individual students would constitute an invasion of privacy. The public interest in understanding the demographic make-up of eligible student populations, applicant student populations, and student populations made offers of admission is satisfied by the publicly available demographic data related to applicants located on the Department’s website, which has been suppressed and aggregated so as to not identify individual students… In short, the public’s interest does not substantially outweigh the seriousness of the invasion of privacy that would be caused by the disclosure.

Helene Betterncourt SPR25/0040 Page 7 January 17, 2025 The Department’s response did not did not contain the specificity required in a denial of access to public records. Based on the Department’s response, the Department has not explained how the withheld records, in their entirety, constitute intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the Department did not provide 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. PETA, 477 Mass. at 292. The Department must clarify these matters. Further, based on the Department’s response, it is unclear what records it possesses that it withheld from disclosure. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). Therefore, the Department must identify the records it has in its possession that it is withholding under Exemptions (a) and (c). Conclusion Accordingly, the Department is ordered to provide Attorney Crowley 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. Attorney Crowley may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Ellen A. Crowley, Esq.