Lana Sullivan v. Department of Fire Services (SPR 20251775)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 3, 2025 SPR25/1775 Glenn M. Rooney, Esq. General Counsel Department of Fire Services Executive Office of Public Safety and Security P. O. Box 1025, State Road Stow, MA 01775 Dear Attorney Rooney: I have received the petition of Lana Sullivan, Esq., of the Law Office of Lana Sullivan, appealing the response of the Department of Fire Services (Department/DFS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 5, 2025, Attorney Sullivan requested: [1] All communications from September 18, 2024 to the present concerning [an identified individual] between any person currently or formerly employed by the DFS/[Massachusetts Firefighting Academy (MFA)], including but not limited to [six identified individuals] and any other person, including but not limited to [seven identified individuals] and/or any other person employed by the [a specific law firm]. [2] A list of all person(s) external to the DFS/MFA to whom any information concerning [an identified individual] (other than [the identified individual] and/or his counsel) was disclosed from January 1, 2022 to the present, including the specific date(s) of the disclosures. [3] A list of the names of all person(s) enrolled in any career recruit programs and/or officer management training programs also attended by: [two identified individuals] at the DFS/MFA from January 1, 2022 to the present. The Department responded on June 18, 2025. Unsatisfied with the Department’s response, Attorney Sullivan petitioned this office and this appeal, SPR25/1775, was opened as a result. Subsequent to the opening of this appeal, the Department provided a supplemental response on June 24, 2025. 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

Glenn M. Rooney, Esq. SPR25/1775 Page 2 July 3, 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. 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 June 18th Response In its June 18, 2025 response, the Department provided records responsive to Items 1 and 2 of the request. Records responsive to Item 2 of the request were redacted pursuant to Exemptions (c) and (f) of the Public Records Law. The Department withheld records responsive to Item 3 of the request pursuant to G.L. c. 71, §§ 34D and 34E, as the statutes operate through Exemption (a) of the Public Records Law. Current Appeal In her June 20, 2025 petition this office, Attorney Sullivan objected to the Department’s response regarding Item 3 of her request, contending that the information sought was subject to public disclosure. 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).

Glenn M. Rooney, Esq. SPR25/1775 Page 3 July 3, 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, 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 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 G. L. c. 71, § 34D provides: 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. G. L. c. 71, § 34E provides: Each school committee shall, at the request of a parent or guardian of a student, allow such parent or guardian to inspect academic, scholastic, or any other records concerning such student that are kept or are required to be kept, regardless of the age of such student. Each school committee shall, at the request of a student eighteen years of age or older, allow such student complete access to all school records relative to him or her. 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

Glenn M. Rooney, Esq. SPR25/1775 Page 4 July 3, 2025 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: 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) (emphasis in original). In its June 18th response, the Department stated: Although the MFA is not a traditional educational institution, the Department interprets statutes such as G.L. c. 71, §§ 34D and 34E, which govern the confidentiality of student records in public educational settings, as creating a broader statutory implication that student records, including those related to training, enrollment, and attendance, are entitled to a degree of privacy. This interpretation is consistent with the public policy interest in safeguarding personal information and aligns with the Department’s long-standing practice of treating student-related records as confidential and not subject to release absent consent or a clear legal obligation. In its June 24th response, the Department reiterated its position that “… a list of names of all individuals enrolled in any career recruit or officer management training programs attended by two specific individuals, are protected as student enrollment and training records[.]” Based on the Department’s responses, it is unclear how the responsive records can be withheld under the cited statutes, as they operate through Exemption (a). Specifically, it is not clear how the Department is a “public elementary [or] secondary school of the commonwealth,” nor how the responsive records constitute “student records” as required by the cited statutes and associated regulations. It is additionally unclear whether segregable portions of the responsive records may be provided. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G.L. c. 66, § 10(a). 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). The Department must clarify these matters.

Glenn M. Rooney, Esq. SPR25/1775 Page 5 July 3, 2025 Conclusion Accordingly, the Department is ordered to provide Attorney Sullivan 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. Attorney Sullivan may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Lana Sullivan, Esq.