Michael DiPronio v. Natick, Town of - Public Schools (SPR 20160731)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords September 27, 2016 SPR161731 Mr. Peter Sanchioni, Ph.D. Superintendent of Schools Town of Natick-Public Schools Central Office 13 East Central Street Natick, MA 01760 Dear Dr; Sanchioni: I have received the petition of Michael DiPronio appealing the response of the Town of Natick-Public Schools (School District) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. DiPronio requested a copy of all "out-of-district placement" agreements between students/parents and the School District. These records were the subject of a previous appeal and determination. See SPR16/460 Determination of Supervisor of Records (July 19, 2016). In my prior determination, I ordered the School District to provide Mr. DiPronio a final response with respect to the records, which provided a basis for the redactions due to confidentially with student records. In compliance with this administrative order, by letter dated July 27, 2016, the School District provided Mr. DiPronio with redacted copies of the "out-of-district placement" agreements, and a cover letter explaining the redactions. The School District redacted personally identifiable information that either specifically identifies the student or is information linked to or linkable to a student that would allow a reasonable person in the school community, who may have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty. The School District cited the federal Family Education Rights and Privacy Act (FERP A); the federal Individuals with Disabilities Education Act (IDEA), and the state student record statutes and regulations concerning confidentially of student record information. See 20 U.S.C. § 1232g, 20 U.S.C. § 1400; see also G. L. c. 71, §§ 34D, 60, G. L. c. 71B, § 1; and 603 CMR 23.00 et seq. "Personally identifiable information," as used in FERPA , includes, but is not limited to, the student's name; the names of the student's parents or other family members; the address of the student or student's family; personal identifiers, such as the student's social security number; and indirect identifiers, such as the student's date of birth. See 34 C.F.R. § 99.3. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Dr. Peter Sanchioni, Ph.D. SPR16/731 Page 2 September 27, 2016 The definition will also include "[O]ther information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty," and "[I]nformation requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates." Id. Basis of this appeal The basis of the current appeal is that the School District failed to provide Mr. DiPronio with the monetary costs or financial terms in each of the out-of-district placement agreements to show what the School District is paying for each student's out-of-district costs. While the School District has properly withheld the "personally identifiable information," it may not withhold the financial terms of in each agreement. Exemption (c)-privacy Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Examples of "intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family fights and reputation. I d. at 626 n.2. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979). In a 2015 Supreme Judicial Court decision, the Court took up the question of whether settlement agreements between a public school and the parents of a public school student who may require special education services are public records in their entirety, or whether the agreements are exempt in their entirety or partially exempt under the second clause of Exemption (c). See Champa v. Weston Public Schools & others, 473 Mass. 86 (2015). These agreements are commonly lmown as "out-of-district placement agreements," and are the same type of agreements that Mr. DiPronio was provided by the School District on July 27, 2016.

Dr. Peter Sanchioni, Ph.D. SPR16/731 Page 3 September 27, 2016 The Champa Court found that these types of agreements contain some information that amounts to an unwarranted invasion of privacy. The Court opined, that "[T]he agreements may link the name ofthe individual student (and his or her family) to information about the services and programming the child will receive and information about the child's disability, progress, and needs. Further, the agreements are likely to identify the out-of-district school, which may indirectly identify the child's disability. This type of information is highly personal, and disclosure may result in embarrassment and potentially lead to stigma, bringing it within the scope of exemption (c)." Champa, at 97. The Court noted that while the agreements contain identifying information that falls under the privacy clause of Exemption (c), as well as the protections of federal and state student record information laws, portions of the agreements containing the financial terms and monetary costs do not constitute an unwarranted invasion of personal privacy. "Notably, once personally identifiable information is redacted, the financial terms of such agreements, which necessarily reflect the use of public monies, partially or fully, to pay for out-of-district placements, do not constitute an unwarranted invasion of personal privacy; indeed the public has a right to know the financial terms ofthese agreements." Champa, 473 Mass. at 97, 98 (citing Attorney General v. Collector ofLynn, 377 Mass. 151 at 158). Accordingly, the Natick Public Schools is not permitted to withhold the financial terms and costs within the content of the agreements, such as amount of the tuition and the costs of the tuition paid by the School District and by the parents, and transportation costs under the Public Records Law. Order I find the School District has failed to properly respond to a request for public records. Accordingly, the School District is hereby ordered to provide Mr. DiPronio copies of the "out-of district placement" agreements redacted in a manner consistent with this order, the Public Records Law, its Regulations and the holding in Champa. A copy of any such response that accompanies the records 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. Sha. . Williams Sutfervisor of Records cc: Mr. Michael DiPronio