Maureen Ronayne v. Winchester, Town of - Public Schools (SPR 20211002)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2021 SPR21/1002 Judith A. Evans, Ed.D. Records Access Officer Winchester Public Schools 40 Samoset Road Winchester, MA 01890 Dear Dr. Evans: I have received the petition of Maureen Ronayne appealing the response of the Winchester Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 4, 2021, Ms. Ronayne requested texts of identified individuals on “January 26, 27, 28, 2021…” The School provided a response on March 26, 2021, which included responsive records, with some records redacted pursuant to Exemption (a). Unsatisfied with the School’s response, Ms. Ronayne petitioned this office and SPR21/1002 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, § 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive 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

Judith A. Evans, Ed.D. SPR21/1002 Page 2 May 4, 2021 The School’s March 26th response In its March 26th response, the School indicates, “two messages have been redacted pursuant to ‘Exemption A’ of the Public Records Law, because it implicates student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act (‘FERPA’). Specifically, the messages reference personally identifiable information (‘PII’) of a student and therefore the information must be redacted pursuant to FERPA and 603 CMR 23.00.” 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 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 "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 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 its response, the School referenced 603 C.M.R. 23.00, which states in pertinent part as follows: 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.

Judith A. Evans, Ed.D. SPR21/1002 Page 3 May 4, 2021 603 CMR 23.07(4). Subsequent to the opening of this appeal, the School sent a response to this office on April 30, 2021, indicating “[t]he messages relate to an individual student’s disability…the District continues to respond to requests from this individual and her family members regarding documents/communications related to student disabilities and related appeals. The District has been and continues to be more than willing to work with the requestors on providing responsive documents, however it is unable to disclose information related to student disabilities under FERPA and 603 CMR 23.00 and has conveyed the same to the requestors.” In camera inspection In order to facilitate a determination as to the applicability of the Exemption (a) claim made by the School to redact the responsive records, the School must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, 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. Mass. 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. Conclusion The School is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay.

Judith A. Evans, Ed.D. SPR21/1002 Page 4 May 4, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Maureen Ronayne