Kenny Warren v. Pittsfield, City of - Public Schools (SPR 20251225)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2025 SPR25/1225 Ann Marie Carpenter Director of Human Resources, Diversity and Inclusion Pittsfield Public Schools 269 First Street Pittsfield, MA 01201 Dear Ms. Carpenter: I have received the petition of Kenny Warren appealing the response of the Pittsfield 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 April 14, 2025, Mr. Warren requested, “any and all documents and/or public records concerning any DCF referrals this fiscal year. . . . I would like to make the same request for any complaints that have been filed pursuant to Title IX.” The School responded on April 14, 2025. Unsatisfied with the School’s response, Mr. Warren appealed, and this case, SPR25/1225, was opened as a result. While this appeal was pending, the School provided a further response on May 9, 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. Att’y 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

Ann Marie Carpenter SPR25/1225 Page 2 May 15, 2025 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. Current Appeal In his May 2, 2025 appeal petition, Mr. Warren states the following: On April 14, 2025, I submitted a request by email to . . . [the School] seeking information relative to Title IX Complaints & DCF referrals for the current fiscal year. . . . On April 17, 2025, I participated in a zoom conference with . . . [the School] to discuss all my various requests, including this one. . . . Since that time I have received no further response. . . . I respectfully request that your office review this matter and direct the release of the relevant information re: Title IX Reports & DCF Referrals. I believe the information in question relates to matters of substantial public interest, including the conduct of public employees and the operations of a public school system. . . . The School’s April 14th and May 9th Responses In its April 14, 2025 response, the School stated, “DCF filings and Title IX complaints are student specific and are not considered public records. Thus, it is not clear if it is legal for any of this to be released.” The School further noted that it would “[check] with counsel and will get back to [Mr. Warren].” In its May 9, 2025 response to Mr. Warren and this office, the School claimed Exemption (a) of the Public Records Law to withhold records responsive to Title IX complaints. The School additionally cited Exemption (c) to withhold records responsive to DCF filings and Title IX complaints. Regarding the portion of Mr. Warren’s request seeking records responsive to “any DCF referrals this fiscal year[,]” the School also advised in its May 9, 2025 response that it “does not maintain any records of the total number of DCF filings responsive to [the] request.” The School further indicated that, “[u]nder the Massachusetts Public Records Law, . . . a records custodian is not required to create a new record in order to respond to a request for information. . . .” 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).

Ann Marie Carpenter SPR25/1225 Page 3 May 15, 2025 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. Family Educational Rights and Privacy Act In its May 9, 2025 response, the School referenced the Family Educational Rights and Privacy Act (FERPA), operating under Exemption (a), as applicable to withholding records responsive to “any complaints that have been filed pursuant to Title IX.” FERPA is a federal statute and provides in pertinent part: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than to the following . . . 20 U.S.C. § 1232g(b)(1). Additionally, “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:

Ann Marie Carpenter SPR25/1225 Page 4 May 15, 2025 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 May 9, 2025 response, the School stated the following: Request for Title IX complaint records: Consistent with the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and its implementing regulations (34 C.F.R. Part 99), we are unable to disclose personally identifiable information from a student's records without prior written consent from the parent or eligible student, unless a specific exception under FERPA applies. Therefore, the requested records cannot be released as they contain protected student information. Based on the School’s response, it is unclear what records have been withheld, and how the withheld records constitute personally identifiable information or education records as described in the statutes and regulation. Additionally, it is unclear how the records can be withheld in their entirety and why segregable portions cannot be provided. See Champa, 473 Mass. 86 at 93 (2015) (stating that 34 C.F.R. § 99.30, a FERPA regulation, permits disclosure of education records only “after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student’s identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information.”).The School must clarify whether these records can be redacted of personally identifyable information and released. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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

Ann Marie Carpenter SPR25/1225 Page 5 May 15, 2025 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. 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 May 9, 2025 response, under Exemption (c), the School stated, “the [‘]privacy exemption[’] for release of records . . . applies to DCF filings and Title IX complaints.” Based on the School’s response, it is unclear how the records, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the School did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. It is additionally unclear which specific records the School intends to withhold under Exemption (c). See G. L. c. 66, § 10(b)(iv) (a 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”). Also, it is uncertain whether segregable portions can be provided. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The School must clarify these matters.

Ann Marie Carpenter SPR25/1225 Page 6 May 15, 2025 Conclusion Accordingly, the School is ordered to provide Mr. Warren with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Mr. Warren may appeal the substantive nature of the School’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kenny Warren