Jorge Teixeira v. Haverhill, City of - Public Schools (SPR 20181547)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 2, 2018 SPRlS/1547 Supt. Margaret Marotta City of Haverhill Public Schools 4 Summer Street, Room 104 Haverhill, MA 01830 Dear Supt. Marotta: I have received the petition of Jorge Teixeira appealing the response of the City of Haverhill Public Schools (School) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Teixeira requested "[s]ettlement agreements entered into by [the School] with parents and guardians, from the start of the school year of 2012 through today, relative to the provision of special education services and/or educational placement(s) for students with disabilities, redacted of all personally identifying information." The School responded to his request by providing a fee estimate and claiming the responsive records are either subject to redaction or being withheld in their entirety pursuant to 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, § 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

Supt. Margaret Marotta SPR18/1547 Page 2 November 2, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(d)(i). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d )(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The School's response In its response, the School indicates it "has identified a total of 10 settlement agreements that are responsive to [Mr. Teixeira's] request. Based on a timed trial, [the School] estimate[s] that it will take approximately 3.33 hours to redact the 10 agreements." The School indicates that "[a]t twenty-five dollars per hour ($25.00), the cost to [Mr. Teixeira] will be thirty three dollars and twenty give cents ($33.25). This figure reflects the first two hours free, with a charge of $25.00 per hour for the next 1.33 hours (1.33 x 25 =33.25)." The School additionally indicates that "the requested redacted agreement ... will be produced to [Mr. Teixeira] upon [his] remittance of $100.00." The School identifies the Family Educational Rights and Privacy Act (FERPA ) and Exemptions (a) and (c) of the Public Records Law as those statutes requiring redaction. The School is advised that although Exemption ( c) permits redaction of certain information that constitutes an invasion of privacy, it does not require it by law. See G. L. c. 4, § 7(26)(c): Consequently, the School is not permitted to charge to redact information under Exemption (c). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4).

Supt. Margaret Marotta SPR18/1547 Page 3 November 2, 2018 Based on the School's response, it is unclear whether it is charging Mr. Teixeira a total fee of $33.25 or $100.00. Further, it is unclear whether the School is using the rate of the lowest paid employee capable of performing the redactions. Whereas, the School later separates Mr. Teixeira's request into two categories ofrecords: 1) settlement agreements relative to the provision of special education services; and 2) settlement agreements for educational placement(s) for students with disabilities, it is unclear which category the ten responsive agreements fall under. The School must clarify these matters. Settlement agreements relative to educational placement(s) In support of the its fee for redaction under FERPA and Exemption (a), the School cites to the Champa court's finding that "settlement agreements between parents and a public school regarding the placement of students in out-of-district private educational institutions constitute as educational records under [FERPA]." The School further indicates that the court in Champa found "that as it pertains to settlement agreements regarding the placement of students in out-of district private educational institutions, these agreements may be redacted to remove the protected personally identifiable information (PII) they contain, after which they become subject to disclosure under the Massachusetts public record law." , 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. FERPA provides a mechanism which allows for the public disclosure of information from education records when information classified as personally identifiable information is removed. Under 34 C.F.R. 99.3 personally identifiable information includes, but is not limited to, student's name; name of the student's parents or other family member; address of the student or student's family; a personal identifier, such as the student's social security number, student number, or biometric record; other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the community, who does

Supt. Margaret Marotta SPR18/1547 Page 4 November 2, 2018 not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates. 34 C.F.R. § 99.3(g). With respect to the School's fee for redaction of the records responsive to Mr. Teixeira's request for settlement agreements related to "educational placement(s)," I find the School has met its burden of establishing that the records are student records under FERP A, and to the extent the records contain PII, it may charge to redact of such information as required by law. Settlement agreements relative to the provision ofs pecial education services The School asserts that "[i]n Champa, the Court's decision was limited to settlement agreements pertaining to the placement of students in out-of-district private educational institutions." The School indicates that Mr. Teixeira's "request also seeks agreements 'relative to the provision of special education services."' The School asserts that "[t]he SJC did not address agreements which do not pertain to the placement of students in out-of-district private educational institutions. Hence, [Mr. Teixeira's] request seeks records beyond the SJC's interpretation of permissible disclosure under the Massachusetts public record law." The School concludes that it "cannot provide [Mr. Teixeira] with copies of agreements that do not specifically pertain to a student's placement in an out-of-district private educational institution as they are outside the scope of the limited ruling in Champa, and remain exempt from disclosure under the Massachusetts public record law pursuant to federal and state student and family privacy laws for the reasons that they are student records. M.G.L. c. 4, §7, twenty sixth, (a) and (c)." With respect to Mr. Teixeira's request for settlement agreements related to "the provision of special education services," the School is reminded that under the Public Records Law, every government record is presumed to be a public record. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). Although, the School indicates this type ofrecord was not discussed in the Champa case, in conjunction FERPA and the mechanism for public disclosure provided within the statute, it is unclear why the School is withholding these records in their entirety. Specifically, it is uncertain why the School cannot redact PII from the responsive settlement agreements and then provide the records to Mr. Teixeira. As such, the School has not met its burden of specificity to establish these records may be withheld in their entirety under the Public Records Law. See Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption).

Supt. Margaret Marotta SPR18/1547 Page 5 November 2, 2018 Conclusion Accordingly, the School is ordered to provide Mr. Teixeira with a response to the request, provided 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jorge Teixeira