Walter Tuvell v. Reading, Town of - Public Schools (SPR 20220081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 28, 2022 SPR22/0081 Thomas Milaschewski Superintendent Reading Public Schools 188 Washington Street Reading, MA 01867 Dear Superintendent Milaschewski: I have received the petition of Walter Tuvell appealing the response of the Reading Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 1, 2021, Mr. Tuvell requested a copy of a letter with attachments and related communications referenced at the August 26, 2021 School Committee meeting. The School responded on December 13, 2021 and January 5, 2022. Unsatisfied with the School’s responses, Mr. Tuvell petitioned this office and this appeal, SPR22/0081, 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); 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

Thomas Milaschewski SPR22/0081 Page 2 January 28, 2022 The School’s Responses In the December 13th response, the School produced the responsive documents with redactions and advised that the “attachments are protected under state and federal student records laws and regulations.” On January 5, 2022, the School provided a supplemental response in which it cited Exemption (a). 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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 20 U.S.C. § 1232g; 34; CFR Part 99 The Family Educational Rights and Privacy Act (FERPA) and G. L. c. 71, s. 34D and 603 C.M.R. 23.00 et. seq. FERPA provides in relevant part: "Education records" under FERPA are defined as: those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution 20 U.S.C. § 1232g(a)(4)(i-ii). FERPA defines "personally identifiable information" as including, but not limited to:

Thomas Milaschewski SPR22/0081 Page 3 January 28, 2022 The student's name; (b) The name of the student's parents or other family member; (c) The address of the student or student's family; (d) A personal identifier, such as the student's social security number, student number, or biometric record; (e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name; (t) 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 not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (g) 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. 603 C.M.R. 23.00 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. 603 CMR 23.07(4). In its response, the School asserted, ‘[t]he information that I have withheld in each instance is confidential, identifiable, student record information and if I were to provide this document in an unredacted form, it would be in violation of state and federal student records laws and regulations.” I find that the School has permissibly withheld portions of the requested records pursuant to Exemption (a) of the Public Records Law as it pertains to FERPA. Accordingly, this administrative appeal is now closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Walter Tuvell