Nick Cream v. Holyoke, City of - Public Schools (SPR 20253341)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 25, 2025 SPR25/3341 Shaena Gubala Records Access Officer Holyoke Public Schools 57 Suffolk Street Holyoke, MA 01040 Dear Ms. Gubala: I have received the petition of Nick Cream appealing the response of Holyoke 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 October 20, 2025, Mr. Cream requested the following: 1. Video surveillance footage recorded on October 2, 2025 between 11:30am to 1pm from any and all cameras installed in the Kelly Elementary School cafeteria. 2. Any and all incident/accident/assault reports filed on October 2, 2025 or thereafter by [an identified individual], the school nurse on duty and the school principal. 3. Full transcripts or notes taken during any and all interviews of staff or students conducted by HPS staff related to [an identified individual’s] assault which occurred on October 2, 2025. 4. Any and all communication between HR staff including [an identified individual], including any and all other HPS staff that were involved in providing information related to the October 2, 2025 assault, including but not limited to information used by HPS to determine [an identified individual’s] Assault Leave eligibility and subsequent denial of said Assault Leave. 5. Any and all communication between HR staff including yourself, including any and all other HPS staff that were involved in informing [an identified individual] that any time taken to treat or subsequent appointments related to 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

Shaena Gubala SPR25/3341 Page 2 November 25, 2025 her injuries caused by the assault would be unpaid since she had no remaining paid sick time. 6. Any and all information, data or evidence used by HPS to determine [an identified individual’s] Assault Leave eligibility and subsequent denial of said Assault Leave. The School responded on November 3, 2025. Unsatisfied with the School’s response, Mr. Cream petitioned this office and this appeal, SPR25/3341, 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. 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 School’s November 3rd Response In its November 3, 2025 response, the School cited Exemptions (a) and (c) of the Public Records Law to withhold responsive records. See G. L. c. 4, § 7(26)(a), (c). Current appeal In his appeal, Mr. Cream states the following: On October 2, 2025, between 11:30am to 1pm, [an identified individual] was sitting at a lunch table at the Kelly School cafeteria. Student A walked up to her from behind and struck her so hard, she was diagnosed with a concussion. On October 14, 2025 [an identified individual] emailed the Holyoke Teachers

Shaena Gubala SPR25/3341 Page 3 November 25, 2025 Association to inform them that [an identified individual] was being denied contractual assault leave. … On November 4, 2025 the HTA filed a grievance on behalf of [an identified individual] citing violations of the Assault Leave provision in their CBA. For the reasons above and with the understanding that some information may be redacted, the Holyoke Teachers Association requests that these public records be provided in order to fairly represent [an identified individual]. 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. Family Educational Rights and Privacy Act (FERPA) In its response, the School 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

Shaena Gubala SPR25/3341 Page 4 November 25, 2025 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: (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; (f) 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. Massachusetts Student Records Regulations Additionally, in its response, the School cites G. L. c. 71, § 34D and 603 C.M.R. 23.00 et seq. G. L. c. 71, § 34D provides in pertinent part: 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, § 34D. 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

Shaena Gubala SPR25/3341 Page 5 November 25, 2025 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). When citing the above statutes in its response, the School states, “[t]o the extent any responsive records would reveal the identity of student involved in an incident of alleged wrongdoing, that record(s) would be exempt from disclosure pursuant to the Family Educational Rights and Privacy Act and G.L. c. 71, section 34D and 603 CMR 23.00, et seq. On this basis alone, the District would consider the production of any responsive records in redacted form. However, given the pre-existing knowledge of the student’s identity, redaction would not be effective to protect the student’s privacy interests in their educational record.” Based on the School’s response, it is unclear what records have been withheld, and how the records constitute personally identifiable information or education records as described in the statutes and regulations. Additionally, it is unclear how the records can be withheld in their entirety and why segregable portions cannot be provided. The School must clarify these matters. 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 non-exempt, 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 shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c).

Shaena Gubala SPR25/3341 Page 6 November 25, 2025 First clause Medical information that is of a personal nature and relates to a specifically named individual may be 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. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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 Corp. 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 Ass’n v. Sch. Comm. 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 Ass’n, 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 Ass’n, 431 Mass. at 798. Second clause 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).

Shaena Gubala SPR25/3341 Page 7 November 25, 2025 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. Under Exemption (c), the School states the following: In this case, because the request relates to a specified individual and a claim for a specific benefit (assault leave), releasing any such records, should they exist, would reveal injuries suffered (medical condition), if any, as well as the confidential personnel action related to the potential designation of the employee’s leave as assault leave. Had your request been generic as to any incidents of assault leave such that the District could have responded without identifying the specified individual, it would have considered producing any responsive records with the identifying information redacted. In this case, however, the redaction of such information from any responsive records would be ineffective given the framing of your request, i.e., it identifies the individual involved. Based on the School’s response, it is unclear what records have been withheld, and how the records constitute personnel information and medical information under Exemption (c). Additionally, it is unclear how the records can be withheld in their entirety and why segregable portions cannot be provided. The School must clarify these matters. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Moreover, the School has not explained how the records contain intimate details of a highly personal nature or how disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. The School also did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining this information outweighs the seriousness of any invasion of privacy. The School must clarify these matters. Further, based on the School’s response, it is unclear what records it possesses that it withheld from disclosure. 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,

Shaena Gubala SPR25/3341 Page 8 November 25, 2025 and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). Therefore, the School must identify the records it has in its possession that it is withholding under Exemptions (a) and (c). Conclusion Accordingly, the School is ordered to provide Mr. Cream 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. Mr. Cream may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Nick Cream