Jorge Teixeira v. Weymouth, Town of - Public Schools (SPR 20171671)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 18, 2017 SPR17/1671 Dr. Jennifer Curtis-Whipple Superintendent of Schools Weymouth Public Schools 111 Middle Street Weymouth, MA 02189 Dear Dr. Curtis-Whipple: I have received the petition of Peter Carr, Esq. on behalf of Jorge Teixeira appealing the response of Weymouth Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Teixeira requested "[s]ettlement agreements entered into by your School District with parents and guardians, from January 1, 2011 through today, relative to the provision of special education services and/or educational placement(s) for students with disabilities, redacted of all personally identifiable information." The School provided a response dated September 25, 2017 in which it provided responsive records with portions redacted under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). 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. 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

Dr. Jennifer Curtis-Whipple SPRl 7/1671 Page 2 December 18, 2017 The School's September 25th response In its September 25th response the School asserts "[p]lease note that the agreements have been redacted to eliminate personally identifiable information that is exempt from disclosure under Exemption A and Exemption C of the Public Records Law." The School notes that it "redacted any information in the agreements that could reasonably identify a student" and explains that the following information was redacted: student name and date of birth, parent/guardian name, pronouns referring to student and/or parent/guardian, the name of the placement, the specific cost of the placement, the type of school, any notations regarding the student's disability, any references to the time period of the agreement, and any references to the dates of the agreement. The Supreme Judicial Court (SJC) found that with respect to a similar request for records, "both exemption (a) and exemption (c) to the definition of public records in G. L. c. 4, § 7, Twenty-sixth, apply to the agreements, but that personally identifying information in the agreements is subject to redaction, and when the agreements are properly redacted, they must be disclosed." Champa v. Weston Pub. Sch., 473 Mass. 86, 98-99 (2015). The Champa Court provides guidance on the applicability of certain statutes as they operate through Exemption (a), as well as Exemption (c). The SJC also provides the following: The agreements here, although they contain identifying information, also include information that does not appear to invade the reasonable privacy interests of students or their families. 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 of these agreements. Id. at 97-98. Based on its September 25th response, the School has not met its burden to show that it produced records in accordance with Exemptions (a), (c) or the Champa decision. See Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). I understand a Public Records Division staff attorney contacted your office about this matter. Conclusion Accordingly, the School is ordered to provide Mr. Teixeira responsive records in a manner consistent with this order, the Public Records Law and its Regulations 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.

Dr. Jennifer Curtis-Whipple SPR17/1671 Page 3 December 18, 201 7 In camera inspection ofr ecords In the alternative, the School may submit unredacted records to this office for an in camera review to facilitate a determination as to the applicability of the exemptions claimed by the School. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. If the School elects to proceed with the in camera review, it must provide this office with an unredacted copy of the responsive records without delay. The School may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jorge Teixeira Peter F. Carr, II., Esq.