Thomas Relihan v. Bridgewater Raynham Regional School District (SPR 20170934)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 21, 2017 SPR17/934 Judith MacDougall Records Access Officer Bridgewater Raynham Regional School District 166 Mt. Prospect Street Bridgewater, MA 02324 Dear Ms. MacDougall: I have received the petition of Thomas Relihan appealing the response of the Bridgewater Raynham Regional School District (District) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on June 19, 2017 Mr. Relihan requested "[a]ll records, memos, communications and other documents in the District's possession related to the incident involving students gaining unauthorized access to testing materials to be used for final exams." The District denied his request, claiming that the responsive record was exempted from disclosure under G. L. c. 71, § 34D and 603 C.M.R. 23, et. seq. as they operate through Exemption (a) of the Public Records law. G. L. c. 4, § 7(26)(a). 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 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, § 1O (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. 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

Judith MacDougall SPR17/934 Page 2 July 21, 2017 The District's June 20th response In the District's June 20th response, you indicate that "any and all records that identify a student are exempt from disclosure under exemption (a) to the Public Records Law as they are records 'specifically or by necessary implication exempted from disclosure by statute.'" You also indicate that "[t]he specific statute in question is Mass. Gen. L. ch. 71, § 34D, which addresses student records." You further indicate that "that statute also references student record regulations, 603 C.M.R. 23 .00, et. seq., which specifically prohibits the disclosure of student record information to a third party without the specific, informed written consent of the eligible student or the parent." Therefore, "[f]or the records you requested, the determination is that any information pertinent to your request that exist would be considered confidential student records, protected from disclosure to third parties ..." and the District "will refrain from providing any ofthe above documentation." Exemption (a) Exemption (a), thestatutory 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 Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. Gen. Chern. Corp. v. Dep't of Envtl. Quality Eng'g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). As enabled by Chapter 71, Section 34D, the Department of Education has promulgated regulations relating to student records. The regulation states in part: ... 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). A student record consists of the following: ... 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

Judith MacDougall SPR17/934 Page 3 July 21, 2017 name or in a way that such student may be individually identified, and that is kept by the public schools of the Commonwealth. 603 C.M.R. 23 .02. The District has not explained how the responsive record constitutes a "student record" as described above and how certain portions of the record cannot be redacted without disclosing any personal information. The District must explain why any non-exempt, segregable portions ofthe responsive records cannot be disclosed. See G. L. c. 66, § 10(a). Consequently, I find that the District has not met its burden in explaining with specificity how the responsive record may be withheld under G. L. c. 71, § 34D and 603 C.M.R. 23.00 et seq. as they operate through Exemption (a) of the Public Records Law. See Flatley, 419 Mass. at 511. I understand a Public Records Division staff attorney contacted you about this appeal. Conclusion Accordingly, I will consider this appeal closed with the proviso that the District provide Mr. Relihan with a supplemental response within ten 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. Relihan may appeal the substantive nature of the District's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Thomas Relihan