Ronald Alexander v. Wellesley, Town of - Public Schools (SPR 20170661)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 25, 2017 SPR17/661 Melissa A. Curran, Esq. Lyons & Rogers, LLC 800 Hingham Street, Suite 204S Rockland, MA 02370 Dear Attorney Curran: I have received the petition of Ronald Alexander appealing the response of the Town of Wellesley Public Schools (School) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on April 5, 2016 Mr. Alexander requested to inspect and make copies of all settlement agreements, both in-district and out-of-district, reached between the School and parents of students with special education needs for Calendar Year 2016. The School provided Mr. Alexander with redacted copies of the out-of-district settlement agreements, explaining that the agreements contain personally identifiable information which is exempt from public disclosure pursuant to federal and state student and family privacy laws. Specifically, the School cited, 20 U.S.C. § 123g, as amended; 34 C.F.R. Part 99; 20 U.S.C. § 1232h; 34 C.F.R. Part 98; G. L. c. 71, § 34 and 603 C.M.R. 23, et seq., as these federal and state laws and regulations operate through Exemption (a) of the Public Records Law. The School redacted personally identifiable information, pursuant to the definition in 34 C.F.R. 99.3 and as described by the Supreme Judicial Court (Court) in Champa v. Town of Weston, 473 Mass. 86 (2015). Basis for appeal The School has denied Mr. Alexander's request for settlement agreements, other than "out-of-district" settlement agreements reached between the School and parents of students with special education needs. Your April 20, 2017 written response states: "In Champa, the Court's decision was limited to settlement agreements pertaining to the placement of students in out-of-district private educational institutions. The Supreme Judicial Court (SJC) did not address agreements which do not pertain to the placement of students in out-of- district private educational institutions. Hence, your request seeks records beyond the SJC 's interpretation of permissible disclosure under the Massachusetts public records law .... " 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

Melissa A. Curran, Esq. SPRl 7/661 Page 2 May 25, 2017 "[T]hey [the in-district settlement agreements] are outside the scope of the limited ruling in Champa, and remain exempt under the Massachusetts Public Records Law pursuant to federal and state student and family privacy laws, G. L. c. 4, §§ 7(26)(a), (c) and Champa v. Town of Weston, 473 Mass. 86 (2015)." 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, § lOA(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 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, § lO(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. Exemptions (a) and (c) The School posits that the agreements remain exempt from disclosure under the Massachusetts Public Records Law pursuant to the Family Educational Rights and Privacy Act (FERPA) and student records laws and regulations as they operate through Exemption (a) and second clause of Exemption ( c) as it applies to privacy rights of students. This office has consistently found that settlement agreements are public records, and may not be withheld entirely pursuant to Exemption (a), and either the first or second clause of Exemption ( c) of the Public Records Law. Several decisions by Massachusetts courts support the notion that settlement agreements are public records that must be disclosed, but may be redacted. See Champa v. Weston Public Schools, 473 Mass. 86 (2015); see also Memorandum of Decision and Order in the matter between Emily Bazelon and the Town of South Hadley, Civil Action No. i 1-212; see also Globe Newspaper Co., Inc. v. Exec. Office of Admin. and Finance, Suffolk Superior Court Civil Action No. 11-01184-A (June 14, 2013), 34-35. The School contends that the Court in Champa only reviewed the public disclosure of "out-of-district settlement agreements," not in-district agreements. I find that the Court made no such distinction in its ruling. The Court states, "However, like FERP A, the Massachusetts student records law and regulations protect student records only as they pertain to certain information-not entire documents." Champa, 473 Mass. at 95. As a result of the Court's ruling, Mr. Champa received all the settlement agreements in redacted format pursuant to FERP A confidentiality rules as it operates through Exemption (a) and Exemption (c) of the Public Records Law. In fact, FERP A provides a mechanism which allows for the public disclosure of information from education records when information classified as personally identifiable

Melissa A. Curran, Esq. SPRl 7/661 Page 3 May 25, 2017 information is removed. Under 34 C.F.R. 99.3 personally identifiable information includes, but is not limited to: • Student's name • Name of the student's parents or other family member • Address of the student or student's family • A personal identifier, such as the student's social security number, student number, or biometric record • Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name • Other 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; or • 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. I find that the School did not meet the burden of proving with specificity that the records, in their entirety, are exempt from disclosure. 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, § lO(a). Order Accordingly, the School is hereby ordered to provide Mr. Alexander with a more detailed response to support its exemption claims to withhold the in-district settlement agreements, and 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 this response to this office at pre@sec.state.ma.us. Mr. Alexander may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Ronald Alexander Judith Belliveau, Assistant Superintendent