Jeanne Teichert v. Andover, Town of - Public Schools (SPR 20170802)

The Commonwealth ofMassachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 28, 2017 SPR17/802 Paul P. Szymanski Assistant Superintendent Town of Andover Public Schools 36R Bartlet Street Andover, MA 01810 Dear Mr. Szymanski: I have received the petition of Jeanne Teichert appealing the response of the Town of Andover Public Schools (School) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mrs. Teichert requested from the Director of Student Services a copy of all student records concerning her three children, including all emails on all computer servers used by the School with her name, her husband's name, the family surname, and/or the names of their three children referenced or referred to in the emails. The School provided, without charge, student records and some email records pertaining to Mrs. Teichert's children. The School provided a written estimate in its May 25th email communication for the cost of providing the School emails that were not previously provided and that the School believes do not fall into the definition of "student records." In an effort to narrow the request and limit the costs, you asked Mrs. Teichert if she could provide the School with a date range, identify specific individuals to/from whom she would like to retrieve emails, provide known email addresses for certain individuals, and/or inform the School of any specific subject matter or search terms that she would like to be used. Requirements for filing a petition for an appeal Whereas Mrs. Teichert did not provide the Records Access Officer (RAO) with a copy of her petition to the Supervisor of Records (Supervisor), this office provided the RAO with a copy. In petitioning the Supervisor, the requester must provide a copy of such petition to the records access officer associated with such petition. 950 C.M.R. 32.08(1)(h). 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

Paul Szymanski SPR17/802 Page 2 June 28, 2017 Status of the requester; reason for the request Mrs. Teichert should be advised that her status as a parent of children who attend the School does not provide her with any greater right of access to records under the Public Records Law than any other person in the public realm. See G. L. c. 66, § 10(a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Therefore, Mrs. Teichert's status as a parent of children in the School shall play no role in a determination as to whether the email records are public records and should be disclosed to the public-at-large. Public Records vs. Student Records In a telephone discussion with an attorney in this office, you explained that the School intends to produce all records responsive to the request, however, there may be content within the body of the emails that contain information which is exempt under the Public Records Law, other statutes and the common law attorney-client privilege. Therefore, the School has assessed a fee for review and redaction ofthe records. The School maintains that the emails requested by Mrs. Teichert that may have her name, her husband's name, the family surname or the children's names referenced or which refer to these specifically-named individuals are not "education records," and therefore the School may assess fees under the Public Records Law Access Regulations for those emails. In a June 13th petition, Mrs. Teichert states that she rejects the School's response and disagrees with the School's interpretation that every email with her name or her husband's name is considered to be public record. She states, "I provided evidence of guidance from the US Department of Education confirming records containing parents' names are indeed part of the student record." During a June 26th telephone conversation with a Public Records Division attorney, Mrs. Teichert explained that it is a violation of the Family Education Records and Privacy Act (FERP A) to charge her a fee to receive copies of or access to review and inspect the email records she requested because the emails are "education records." See 34 C.F.R. § 99.1 0. (parental right to inspect and review education records). FERPA defines "education record" as those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution. 34 C.F.R. § 99.3. Mrs. Teichert provided this office with a citation to a FERPA determination letter regarding a complaint made to the U.S. Department of Education's Family Policy Compliance Office (Department) in which she believes supports her argument that the requested email records are indeed "education records." Mrs. Teichert explained that the Department considered any written notes or correspondence, including emails that the School maintains that references or contains the parents' names and/or students' names are part of the student's education record.

Paul Szymanski SPR17/802 Page 3 June 28, 2017 See US. Department ofE ducation Letter, Complaint No. 1251, Family Educational Rights and Privacy Act (December 29, 2009) available online at: http://www. wrightslaw.com/info/ferpa.ltr.husk.122906.pdf. It is unclear how the responsive email records that contain personally identifiable information about a student or a parent are different than those records classified as an education record by the Department which contain the student's name and the name of the student's parent or other family member. See US. Department ofE ducation Letter, Complaint No. 1251. Therefore, I find that the School has not met its burden of supporting its interpretation that the emails requested by Mrs. Teichert are public records subject to the fees prescribed by the Public Records Law and not education records that must be provided to the requestor, as a parent, without cost. Order Accordingly, the School is hereby ordered to provide Mrs. Teichert with a response to support its claim that the requested records are not education records subject to review and inspection by Mrs. Teichert, in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Mrs. Teichert may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Jeanne Teichert