Scavongelli, Esq., Michele v. Wellesley, Town of - Public Schools (SPR 20150377)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 11, 2015 SPRlS/377 Ms. Judith M. Belliveau Assistant Superintendent for Finance & Operations Wellesley Public Schools 50 Kingsbury Street Wellesley, MA 02481 Dear Ms. Belliveau: I have received the petition of Michelle Scavongelli, Esq. of the EdLaw Project appealing the response of the Wellesley Public Schools (Schools) to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Scavongelli requested scanned and electronically provided copies of records ofthe Schools consisting of: 1. Contracting rules and regulations governing relationships with vendors performing Individual Education Evaluations (lEEs), including: relevant service contracts, contract guidelines, "Request for Proposals" documentation, any independent education evaluation bidder's list maintained by the Schools; and 2. Documents related to vendors that have performed one or more lEE for the Schools, including name, address, number of lEEs performed, and rates rate charged for such services. Documents should include invoices for lEE evaluation services. In its response the Schools provided a "list ofvendors with whom the [Schools] has contracted to provide publicly funded educational evaluations." The Schools further stated that "funding of said evaluations confirms to state regulations." The Schools declined to provide any other responsive records, claiming that any such records are exempt from disclosure pursuant to the Massachusetts student records law and regulations, the Family Educational Rights and Privacy Act (FERP A) and the Individuals with Disabilities Education Act (IDEA) as these statutes operate through Exemption (a) of the Public Records Law. The Schools failed to provide specific citations for FERP A or IDEA. The Public Records Law favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Judith M. Belliveau SPR15/377 Page Two September 11, 2015 form or characteristics, made or received by any officer or employee of any town 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 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Other than cite FERP A and IDEA as well as the student records regulation, the Schools failed to make any connection between such statutes and the responsive records. Requester did not seek individually identifiable information At no point does Attorney Scavongelli's January 9, 2015 request seek identifiable student information. To clarify this point, Attorney Scavongelli, in a March 5, 2015 letter to you stated that the "public information ... requested pertains to financial transactions of the district only and need not (in fact, should not) contain personally identifiable information" (emphasis in original). To the best of the knowledge of this office Attorney Scavongelli received no response to her March 5 letter. The Schools have made no claim to support a withholding of all responsive records. Schools fail to establish a basis for withholding all responsive records The Schools have claimed that the Massachusetts Student Records Law and its Regulations, Family Educational Rights and Privacy Act (FERP A) and Individuals with Disabilities Education Act (IDEA) restrict access to the requested records because these statutes and regulations prohibit the unauthorized disclosure of information from students' records or the release of information to third parties which contain personally identifiable information concerning students. Other than a reference to the statute and regulatory restrictions, the Schools provide no information to support a claim ofwithholding all responsive records. As stated above, Attorney Scavongelli specifically omitted any specifically identifiable student information from her request. Attorney Scavongelli sought only records containing "contracting rules and regulations that govern relationships with vendors that perform Individual Education Evaluations," specifically "service contracts," "published guidelines," "Formal Request for Proposals," any "Independent Education Evaluation bidder's list." All the Schools provided was a single sheet of paper containing a list of thirteen "Evaluators." The Schools provided no information to support its withholding all of the records Attorney Scavongelli requested. There is a substantial public interest in monitoring the expenditure of public funds. In its response to a request for copies of invoices and other infonnation regarding government expenditures, the Schools merely states that "funding of said

Ms. Judith M. Belliveau SPR15/377 Page Three September 11, 2015 evaluations confirms to state regulations." This response does not satisfy the request nor does it satisfy the requirements of the Public Records Law. Order I find the Schools have not met its burden of specificity to show why the responsive records could not be redacted to omit any exempt information. Accordingly, whereas the Schools have not overcome the presumption that the requested records are public, the Schools are hereby ordered, within ten (1 0) days of this order, to provide Attorney Scavongelli with the requested records. Whereas the March 5 letter clearly states a noninterest in obtaining specifically identifiable information regarding students, the Schools may redact the records in accordance with the Public Records Law, applicable statutes and regulations; however, the Schools must provide written explanation, with specificity, how a particular exemption applies to the redacted portions of each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. cc: Ms. Michelle Scavongelli, Esq.