Ronald Alexander v. Wellesley, Town of - Public Schools (SPR 20171079)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 17, 2017 SPR17/1079 Judith Belliveau Assistant Superintendent/Records Access Officer Town of Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Belliveau: I have received the petition of Ronald Alexander appealing the response of Wellesley 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, on May 17, 2017, Mr. Alexander requested "to inspect and make an electronic copy of all electronic mail (email) messages sent, received, deleted, archived, or otherwise by the Wellesley Public Schools (WPS) email system from the earliest message sent on December 15, 2015 at 17:00 (5:00p.m.) to the latest message sent on December 15, 2015 at 18:00:00 (6:00p.m.)." Mr. Alexander indicated that he wanted "all messages in between, including [a]ll messages in the specified date/time range for [a]ll subject matters, [a]ll dates, [a]ll senders, [a]ll recipients, [a]ll attachments, and [a]ll metadata including the [d]ate, [t]ime, [s]ubject, [:f]rom, [c]c, [b]cc, Attachments, and routing information fields for all messages." The School redacted certain portions of the records pursuant to the Family Education Rights Privacy Act (FERP A) and its regulations regarding student records as these laws operate through Exemption (a) ofthe Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the response, Mr. Alexander petitioned this Office and this appeal, (SPR171 1 079), was opened as a result. Procedure for appeals A review of the petition Mr. Alexander filed with the Supervisor of Records (Supervisor) reveals that Mr. Alexander did not provide a copy of the petition to the School's records access officer. "In petitioning the Supervisor, the requester shall provide a copy of such petition to the records access officer associated with such petition." 950 C.M.R. 32.08(1)(h). 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 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 Belliveau SPR17/1079 Page 2 August 17, 2017 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The School's June 5th response The June 5, 2017 response by the School indicated that the School had redacted the records under 20 U.S.C. § 1232g and 34 C.F.R. Part 99, as they operate through Exemption (a). Exemption (a) Exemption (a), known as the statutory 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 ofLynn, 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). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to

Judith Belliveau SPR17!1079 Page 3 August 17, 2017 a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In the School's June 5th response, it indicated that, "Exemption (a) applies to records that are specifically or by necessary implication exempted from disclosure by statute. In this case, email headers contain student information protected from release under the Family Education Rights Privacy Act ("FERPA"), 20 U.S.C. § 1232g and 34 C.P.R. Part 99. FERPA and its implementing regulations protect the privacy of students' education records by limiting disclosures of Personally Identifiable Information ("PII") contained in such records. 'Education records' means those that are: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution. 34 C.P.R. § 99.3." The school explains that "PII includes: the student's name, the name of the student's parent or other family members, the address of the student or student's family, [p]ersonal identifiers, such as the student's social security number, student number, or biometric record, [i]ndirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name, [i]nformation 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 records relates. !d." The School further indicates that, "[h]ere, many of the responsive records constitutes student records because the records are maintained by the Department and pertain directly to a student. Thus, where the subject line together with the email address reveals information pertaining to a student, the email address of that student or parent has been redacted." The School also explains that "[n]otwithstanding the general consent requirement, educational institutions may disclose PII from an education record with consent in a number of circumstances set forth in 34 C.P.R. § 99.31. Notably, educational institutions may disclose 'directory information' about students without consent provided that the institution has provided notice in accordance with 34 C.P.R. § 99.37. Directory information is defined to include the · student's name, address, telephone listing, electronic mail address and other information that would generally be considered harmful or an invasion of privacy if disclosed. 34 C.P.R. § 99.3." The School explains that, "[w]hile email addresses may be considered 'directory information' in certain circumstances, they are not mere 'directory information' where disclosing the student or parent's email address in conjunction with the subject line of an email would effectively disclose non-directory information about the student. For example, disclosing the student's email address together with a subject requesting assistance on homework would constitute a disclosure of protected information that a non-parent is not entitled to receive under FERP A without a valid consent."

Judith Belliveau SPR17/1079 Page 4 August 17, 2017 The School further explains that "[s]imply because the student's name constitutes directory information does not mean that FERP A precludes withholding of the student's name or other identifying information in this situation. While 34 C.P.R. §§ 99.30 and 99.31 contain exemptions to FERPA , none are applicable here. Accordingly, I have redacted student and parent email addresses where those email addresses appear on a student record." Conclusion Accordingly, I find that the Family Education Rights Privacy Act and its regulations as they operate through Exemption (a) will allow the School to redact student and parent email addresses that appear on a student record. Whereas the School has met its statutory and regulatory obligation under the Public Records Law, I will consider this administrative appeal closed. If Mr. Alexander is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ··~ Rebecca S. Murray Supervisor of Records cc: Ronald Alexander