Douglas Moser v. Lexington Public Schools (SPR 20190559)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 28, 2019 SPR19/0559 Julie Hackett, Ed. D. Superintendent of Schools Lexington Public Schools 146 Maple Street Lexington, MA 02420 Dear Superintendent Hackett: I have received the petition of Douglas Moser appealing the response of the Lexington 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 January 31, 2019, Mr. Moser requested a" ... copy of the settlement agreement between [the School] and [an identified individual] in 2008, relating to an incident with a time out room and his daughter ... in 2006." The School provided responses on February 6, 2019, and March 13, 2019, denying access to responsive records. Unsatisfied with the School's response, Mr. Moser petitioned this office and this appeal, SPR19/0559, was opened as a result. 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records 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

Julie Hackett, Ed. D. SPR19/559 Page 2 March 28, 2019 custodian must provide the responsive records. The School's February 6th and March Jih responses In its February 6, 2019 response, the School states that it " ... cannot confirm or deny whether such a document exists, as that would be a violation of the laws protecting disclosure of student records. Second, student-specific documents such as the one [Mr. Moser] ha[s] requested are specifically protected from disclosure under the Massachusetts student records laws and regulations." In its March 13, 2019 response, the School reiterates its position that it can neither confirm nor deny the existence of the record under" ... 'the laws protecting disclosure of student records.' [The School] asserts that if it acknowledged the existence of or provided a document in response to Mr. Moser's request where [he] name[s] a student and [is] only requesting a record specifically related to a student that releasing the requested document would violate student records laws and regulations." The School asserts that it" ... is prohibited from disclosing or acknowledging the existence of such a document to a non-authorized third party under Massachusetts General Laws Chapter 71 section 34D-E, Massachusetts regulations 603 CMR 23. 00 et. seq. (specifically, 603 CMR 23.07(4)), and Federal laws and regulations (20 USC 1232g and 34 CFR 99)." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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 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 "shatlnot 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 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

Julie Hackett, Ed. D. SPR19/559 Page 3 March 28, 2019 access to the listed individuals or entities. The statutes and regulation provide in relevant part: The board of education shall adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the commonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or any other records concerning such pupil which are kept or are required to be kept. G. L. c. 71 § 34D. Each school committee shall, at the request of a parent or guardian of a student, allow such parent or guardian to inspect academic, scholastic, or any other records concerning such student that are kept or are required to be kept, regardless of the age of such student. Each school committee shall, at the request of a student eighteen years of age or older, allow such student complete access to all school records relative to him or her. G. L. C. 71 § 34E. Access of Third Parties. Except for the provisions of 603 CMR 23.07(4)(a) through 23.07(4 )(h), 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. When granting consent, the eligible student or parent shall have the right to designate which parts of the student record shall be released to the third party. A copy of such consent shall be retained by the eligible student or parent and a duplicate placed in the temporary record. Except for information described in 603 CMR 23.07(4)(a), personally identifiable information from a student record shall only be released to a third party on the condition that he/she will not permit any other third party to have access to such information without the written consent of the eligible student or parent. ... 603 C.M.R. 23.07(4). Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at. 511. The School's responses did not contain the specificity required in a denial of access to public records. Instead, the School's responses cite both federal and state statutes and regulations without further explanation as to their applicability to the requested record.

Julie Hackett, Ed. D. SPR19/559 Page4 March 28, 2019 Based on the School's responses, it is unclear how the requested record constitutes a student record, similar to the settlement agreements in the Champa decision. See Champa v. Weston Pub. Sch., 473 Mass. 86, 91 (2015). It is additionally uncertain how the statutes and regulations referenced in the School's March 13th response permit the School to withhold the responsive record in its entirety. The School must determine whether there are any portions of the responsive record that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378.Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the School is ordered to provide Mr. Moser 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: Douglas Moser