Joseph Smith v. Mohawk Trail Regional School District (SPR 20250381)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 21, 2025 SPR25/0381 Shana Garcia Executive Secretary to the Superintendent Mohawk Trail Regional School District 24 Ashfield Road Shelburne Falls, MA 01370 Dear Ms. Garcia: I have received the petition of Joseph Smith appealing the response of the Mohawk Trail Regional School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 14, 2025, Mr. Smith requested the following records: [1] any public records held by the district or school that contain communications (or records of communications) to/from police detective . . . or make mention of police detective . . . in any way from 12/01/24 to the date of this request. [2] any public records that contain any communication related to the possible event that has since caused what the superintendent has admitted is an internal investigation, or related more broadly to how one might or should proceed in such an investigation involving police detective . . ., again I seek such records from 12/01/24 to the date of this request. [3] any public records related to communication to MA State Police, the Shelburne Falls Police department, any other law enforcement, as well as DESE related to [a named individual] and/or whatever matter the school says they are investigating in relation to him, again from 12/01/24 to the date of this request. Previous appeal This request was the subject of a previous appeal. See SPR25/0223 Determination of the Supervisor of Records (February 3, 2025). In my February 3rd determination, I found that the District cited Exemptions (a) and (c) of the Public Records Law without any explanation of their applicability to the responsive records. The District responded on February 7, 2025. Unsatisfied 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

Shana Garcia SPR25/0381 Page 2 February 21, 2025 with the response, Mr. Smith petitioned this office and this appeal, SPR25/0381, 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. See 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. 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 District’s February 7th Response In its February 7, 2025, the District cited Exemptions (a) and (c) of the Public Records Law to withhold the requested records. Current Appeal In his February 7, 2025 appeal, Mr. Smith states, “[t]here would be no invasion of personal privacy in the requested records as the name of the student(s) could be easily redacted in any responsive records that were requested.” Mr. Smith also asserts, “[r]egarding the claim that specifically named school personnel (the police detective) would constitute an unwarranted invasion of privacy. The detective is both a public servant in a unique position of power, but is also a public figure. The detective has been kept on active duty even though this matter has been referred to the Berkshire District Attorney’s office as per the Shelburne Chief of Police. Public figures and public servants, especially ones accused of a possible crime and who are actively being investigated for one are not afforded the same expectation of privacy as a private citizen. Regardless, as with the name of a student, the name of the detective can be easily redacted from responsive records.”

Shana Garcia SPR25/0381 Page 3 February 21, 2025 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. Massachusetts Student Records Regulations In its response, the District 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). Additionally, 603 C.M.R. 23.07(4) provides in pertinent part:

Shana Garcia SPR25/0381 Page 4 February 21, 2025 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 the District stated the following: The District appropriately withheld records under Exemption (a), which applies to records specifically exempt from disclosure by statute ... Under Exemption (a), the Massachusetts Student Records Regulations, 603 C.M.R. 23.00 et seq., prohibit the disclosure of student records without consent. These regulations define student records broadly to include any materials maintained by the school that identify a student. The records you requested include references to identifiable students, making them protected from disclosure. Additionally, 603 C.M.R. 23.07(4) explicitly restricts third-party access to student records without written consent from the parent or eligible student. Because the request relates to an internal investigation involving school personnel and potentially students, any responsive records containing student-related information cannot be disclosed under these regulations. ... the District clarifies that email communications between the school and police exist that directly identify students involved in an alleged crime and involve a police detective who previously served as a School Resource Officer (SRO). These records fall under the protections of Exemption (a) as they contain student- specific information and are therefore classified as student records under 603 C.M.R. 23.00 et. seq. Their disclosure would violate the statutory restrictions on student record access. 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

Shana Garcia SPR25/0381 Page 5 February 21, 2025 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. Massachusetts courts have found that “core categories of personnel information that are useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 District states, “[t]he requested records pertain to an internal investigation concerning school personnel, and records related to ongoing personnel matters, including those involving misconduct investigations, are protected. Disclosing such records could reveal confidential employment-related matters, student involvement, and investigative details, which are shielded under this exemption. Massachusetts courts have recognized that records containing intimate, personal, or potentially damaging information about individuals—particularly those involving workplace allegations—should remain protected from public disclosure. Given the sensitive nature of these records, their release would serve no substantial public interest that outweighs the privacy rights of the individuals involved.”

Shana Garcia SPR25/0381 Page 6 February 21, 2025 In camera inspection In order to facilitate a determination as to the applicability of the District’s claims to withhold the requested records under Exemptions (a) and (c) of the Public Records Law, the District must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4). 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. Massachusetts 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 an 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 District is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Joseph Smith