Sara Hincapie v. Bristol Community College (SPR 20252512)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 8, 2025 SPR25/2512 Joyce Brennan Vice President of Marketing & Communications Bristol Community College 777 Elsbree Street Fall River, MA 02720 Dear Ms. Brennan: I have received the petition of Sara Hincapie appealing the response of Bristol Community College (College) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 6, 2025, Ms. Hincapie requested the following records “… previously produced by Bristol Community College to the Massachusetts State Ethics Commission during its 2023-2025 investigation into [an identified individual]”: 1. All written policies of the Department of Counseling Services that were provided to the Commission; 2. All records showing counseling appointments scheduled and held between [two identified individuals] including Zoom invitations and calendar notes (as well as entries, counseling logs, etc.); 3. All records showing counseling appointments scheduled and/or held between [three identified individuals] (e.g., couples counseling or co-attended sessions); 4. All requests and responses to [an identified individual’s] requests for counseling records (including prior denials or correspondence); 5. All conflict of interest disclosures on file for [an identified individual]; 6. All Ethics Commission training records for [an identified individual]; 7. All records of internal investigations involving [an identified individual]; 8. [An identified individual’s] resume and BCC employment application; and 9. [An identified individual’s] job description. The College responded on August 22, 2025. Unsatisfied with the response, Ms. Hincapie petitioned this office and this appeal, SPR25/2512, was opened as a result. 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

Joyce Brennan SPR25/2512 Page 2 September 8, 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. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Hincapie’s status shall have no bearing on the public status of any existing responsive records. The College’s August 22nd Response In its August 22, 2025 response, the College stated that it had previously produced records responsive to Items 1 and 9 of the request, and inquired whether Ms. Hincapie would like to receive additional copies of said records. The College further stated that it was withholding the remainder of the responsive records in their entirety. To justify this withholding, the College cited the Family Educational Rights and Privacy Act and the Health Insurance Portability and Accountability Act and their associated regulations pursuant to Exemption (a) of the Public Records Law, as well as Exemption (c) of the Public Records Law. Current Appeal In her August 25, 2025 petition to this office, Ms. Hincapie requested that the College be ordered to produce records responsive to Items 1 and 9 of the request. Where the College has

Joyce Brennan SPR25/2512 Page 3 September 8, 2025 offered to produce records responsive to Items 1 and 9, I find that it is unnecessary to opine on this portion of Ms. Hincapie’s appeal. Ms. Hincapie further stated that the College’s application of Exemptions (a) and (c) was insufficiently specific, and that the College was required to produce the responsive records in redacted form. 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Family Education Rights and Privacy Act (FERPA) In its August 22, 2025 response, the College cited the Family Educational Rights and Privacy Act (FERPA) and Massachusetts Student Record Regulations to justify the withholding of responsive records. “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

Joyce Brennan SPR25/2512 Page 4 September 8, 2025 20 U.S.C. § 1232g(a)(4)(i-ii). FERPA defines “personally identifiable information” as including, but not limited to: (a) 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. 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: 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). Based on the College’s response, it is unclear how the responsive records can be withheld in their entirety under FERPA, as it operates through Exemption (a). Specifically, it is unclear how the responsive records constitute “education records” as defined by FERPA. The College must clarify this matter.

Joyce Brennan SPR25/2512 Page 5 September 8, 2025 Health Insurance Portability and Accountability Act (HIPAA) In its August 22, 2025 response, the College cited HIPAA and its associated regulations. See 42 U.S.C. § 1320d et seq.; see also 45 C.F.R. §§ 160, 164. HIPAA sets forth rules and regulations for the use and disclosure of protected information by covered entities. The applicable regulation is part of the implementation of HIPAA, and provides the following definitions: Definitions … Covered entity means: … (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. … Individually identifiable health information is information that is a subset of health information, including demographic information collected from an individual, and: (1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (i) That identifies the individual; or (ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual … Protected health information means individually identifiable health information: (1) Except as provided in paragraph (2) of this definition, that is: (i) Transmitted by electronic media; (ii) Maintained in electronic media; or (iii) Transmitted or maintained in any other form or medium. (2) Protected health information excludes individually identifiable health information: (i) In education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g; (ii) In records described at 20 U.S.C. 1232g(a)(4)(B)(iv); (iii) In employment records held by a covered entity in its role as employer; and (iv) Regarding a person who has been deceased for more than 50 years. 45 C.F.R. § 160.103.

Joyce Brennan SPR25/2512 Page 6 September 8, 2025 Based on the College’s response, it is unclear how the responsive records may be withheld in their entirety under HIPAA as it operates through Exemption (a). Specifically, the College must clarify how it is a covered entity within the meaning of the statute. Additionally, the College must clarify how the requested records constitute protected health information. 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). First Clause – Personnel While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Association, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Association, 431 Mass. at 798. First Clause – Medical Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a

Joyce Brennan SPR25/2512 Page 7 September 8, 2025 person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). Second Clause – Privacy Analysis under the second clause of 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 clause 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 the second clause of 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 clause 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 August 22, 2025 response, the College stated: Certain information is exempt under M.G.L. c. 4, § 7(26)(c), which protects “personnel and medical files or information” where disclosure would constitute an unwarranted invasion of personal privacy. Based on the College’s response, I find that the College has not met its burden to demonstrate that the responsive records, in their entirety, constitute one of the core categories of personnel information that are useful in making employment decisions regarding an employee. The College must clarify this matter. Additionally, to the extent the responsive records contain the medical information of a specifically identified individual, such portions may be withheld under Exemption (c) of the Public Records Law. However, I find that the College has not met its burden to demonstrate that the responsive records, in their entirety, constitute the medical information of a specifically identified individual. 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

Joyce Brennan SPR25/2512 Page 8 September 8, 2025 Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Further, it is uncertain how the requested records, in their entirety, constitute 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. The College also 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. The College must clarify these matters. The College must also identify the records in its possession that it is withholding under Exemptions (a) and (c). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, the College is ordered to provide Ms. Hincapie 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. Ms. Hincapie may appeal the substantive nature of the College’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Sara Hincapie