Marion J. King v. Mohawk Trail Regional School District (SPR 20220257)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 17, 2022 SPR22/0257 Karen Totman Executive Secretary to the Superintendent Mohawk Trail Regional School District 24 Ashfield Road Shelburne Falls, MA 01370 Dear Ms. Totman: I have received the petition of Marion King appealing the response of the Mohawk Trail Regional School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 29, 2022, Ms. King requested, “all IEPs issued by the District and accepted or partially accepted for students who attend out-of-districts schools.” The School provided an initial response on January 31, 2022 and a clarifying response on February 3, 2022. Unsatisfied with those responses, Ms. King petitioned this office and this appeal, SPR22/0257, 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 agency or municipality 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. 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

Karen Totman SPR22/0257 Page 2 February 17, 2022 The School’s January 31st and February 3rd Responses In both its January 31, 2022 and February 3, 2022 responses, the School withheld responsive records pursuant to Exemption (a) of the Public Records Law. 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. Current Appeal On January 31, 2022, the School stated: We are not releasing the IEPs for out of district students. Even redacted, our students are singletons in their respective schools and by redacting names, they are still easily identifiable since they are the only student attending the school. Ms. King replied by stating, “please redact the name of the placement school on each document.”

Karen Totman SPR22/0257 Page 3 February 17, 2022 On February 3, 2022, the School stated: We believe that the request for redacted IEP's of students attending out of district schools meets the protection of FERPA even when redacted. We have 11 students in out-of-district placements. Only two of them attend the same school. Each of them attends a school for various reasons. Even redacted, students are easily identifiable. Based on the School’s response, I find it unclear whether the records can be sufficiently de-identified through segregation and redaction so that individuals familiar with the community or the potentially unique needs of the students would not be able to identify the students. The School must clarify this. Conclusion Accordingly, the School is ordered to provide Ms. King with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: Marion King