Peter F. Carr II v. Weymouth, Town of - Public Schools (SPR 20180276)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 14,2018 SPR18/276 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 initially 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). Previous appeal This request was the subject of a previous appeal. See SPR17/1671 Determination of the Supervisor of Records (December 18, 2017). In my December 18th determination I found the School had not met its burden to show that it produced records in accordance with Exemptions (a), (c) or the decision in Champa v. Weston Pub. Sch., 473 Mass. 86 (2015). I ordered the School to provide Mr. Teixeira responsive records in a manner consistent with the order, the Public Records Law and its Regulations. The School responded on February 7, 2018 by providing records with fewer redactions. Attorney Carr appealed and SPR18/276 was opened as a result. Current appeal ih In its February production of records, the School unredacted portions of the settlements "to show the financials on the first page of the documents for each settlement." 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 SPR18/276 Page2 March 14, 2018 In his current appeal, Attorney Carr notes that "the following information is still improperly redacted from the settlement agreements: effective dates, applicable academic/school years, the duration of payments, and the name of the public agent who entered into and signed the agreements." Attorney Carr further indicates "all educational placement information remains redacted without any demonstrable need to protect individual privacy." Tlte 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, § 10(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. Redactions wit/tin responsive agreements 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. In camera review I find that an in camera review of the responsive records would facilitate a determination

Dr. Jennifer Curtis-Whipple SPR18/276 Page 3 March 14,2018 as to the applicability of exemption claims made by the School, in particular it would shed light on the extent to which the redactions are in accordance with Exemptions (a), (c) and/or the Champa decision. 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. The School must provide this office an unredacted copy of the responsive records for in camera inspection 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: Peter F. Carr, II., Esq.