Marion J. King v. Attleboro, City of - Public Schools (SPR 20220337)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 18, 2022 SPR22/0337 David Sawyer Superintendent of Schools Attleboro Public Schools 100 Rathbun Willard Drive Attleboro, MA 02703 Dear Superintendent Sawyer: I have received the petition of Marion King appealing the response of the Attleboro Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 16, 2022, Ms. King requested, “a copy of…Massachusetts Department of Elementary and Secondary Education Letter(s) of Finding for complaint PRS 6359, redacted of any confidential information.” Previous Appeal The records sought by Ms. King were the subject of a previous appeal. See SPR22/0205 Supervisor of Records Determination (February 7, 2022). There, the School stated that it would provide a supplemental response to Ms. King and did so on February 10, 2022. Unsatisfied with the substantive nature of the School’s supplemental response, Ms. King petitioned this office and this appeal, SPR22/0337, 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 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

Superintendent David Sawyer SPR22/0337 Page 2 February 18, 2022 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. The School’s February 10th Response On February 10, 2022, the School provided Ms. King with a responsive record with redactions pursuant to Exemptions (a) and (c) 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. The School claims that FERPA, IDEA, M.G.L. c. 71B, M.G.L. c. 71, § 34D, and the respective regulations for these statutes justify redacting various dates within the responsive record. 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

Superintendent David Sawyer SPR22/0337 Page 3 February 18, 2022 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 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). In an email sent by the School’s counsel on February 15, 2022, the School stated that the “Schools’ position is that the redaction of dates was necessary because the dates would potentially allow a person in the school community who is not familiar with the specific facts in the Letter of Findings to identify the student involved.” In an email sent by the School’s counsel on February 18, 2022, the School clarified that: In this case, the redaction of the dates of two (2) IEP meetings regarding one (1) specific student was made by the District. In the District’s view, an outside observer obtaining knowledge about the specific dates the meetings took place may likely be able to discern the identity of the student being discussed because this involved just two (2) dates and one (1) student involved. The specificity of the dates and the small number of dates being sought, two, makes it more likely that to disclose this information, the requestor would receive personally identifiable information regarding a student. Based on the School’s response, I find it has met its burden to justify redacting certain dates in the responsive record under FERPA, as it operates through Exemption (a) of the Public Records Law. In light of this, I decline to opine on whether the redactions are permissible under Exemption (c). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. King is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.L. c. 66, § 10(b) (pursuing -- administrative appeal does not limit availability of applicable judicial remedies).

Superintendent David Sawyer SPR22/0337 Page 4 February 18, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Marion King