Collins Fay-Martin v. Bureau of Special Education Appeals (SPR 20220602)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 25, 2022 SPR22/0602 Reece Erlichman Director Bureau of Special Education Appeals 14 Summer Street Malden, MA 02148 Dear Director Erlichman: I have received the petition of Collins Fay-Martin appealing the response of the Bureau of Special Education Appeals (Bureau) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 17, 2021, Ms. Fay-Martin requested, “a copy of all [Bureau] hearing requests filed by [a certain law firm] during the calendar years 2018 and 2019.” The Bureau provided a response on December 21, 2021. Ms. Fay-Martin clarified her request on December 21, 2021. The Bureau provided a second response indicating that it was withholding responsive records pursuant to Exemption (c) of the Public Records Law on December 29, 2021. Unsatisfied with the Bureau’s response, Ms. Fay-Martin petitioned this office and this appeal, SPR22/0602, 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

Reece Erlichman SPR22/0602 Page 2 March 25, 2022 The Bureau’s December 21st, December 29th, March 16th, March 23rd, and March 24th Responses The Bureau submitted five responses to Ms. Fay-Martin regarding her request. On December 21, 2021, the Bureau initially provided a record containing hearing request numbers. That same day, Ms. Fay-Martin clarified that she wanted, “…the written hearing requests themselves.” On December 29, 2021 and March 16, 2022, the Bureau stated that it was withholding the written hearing requests in their entirety pursuant to Exemption (c) of the Public Records Law. On March 23, and 24, 2022, the Bureau indicated in addendums to its December 29th and March 16th responses that it was also withholding the written hearing requests 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. In its March 23 and 24, 2022 responses, the Bureau cited various provisions of the Individuals with Disabilities Education Act (IDEA) and its regulations. IDEA states in relevant part, “…due process complaint notice…(which shall remain confidential)…See 20 USC § 1415 (b)(7)(A). IDEA’s regulations state:

Reece Erlichman SPR22/0602 Page 3 March 25, 2022 (1) A parent or a public agency may file a due process complaint on any of the matters described in § 300.503(a)(1) and (2) (relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child). (2) The due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint, or, if the State has an explicit time limitation for filing a due process complaint under this part, in the time allowed by that State law, except that the exceptions to the timeline described in § 300.511(f) apply to the timeline in this section. See 34 C.F.R. § 300.507. Further, IDEA’s regulations provide in relevant part: The public agency must have procedures that require either party…to provide to the other party a due process complaint (which must remain confidential) … The due process complaint…must include: (1) The name of the child; (2) The address of the residence of the child; (3) The name of the school the child is attending; (4) In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child, and the name of the school the child is attending; (5) A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and (6) A proposed resolution of the problem to the extent known and available to the party at the time. 34 C.F.R. § 300.508. Additionally, the IDEA Regulations state, “each [state educational agency] must develop model forms to assist parents and public agencies in filing a due process complaint in accordance with §§ 300.507(a).” See 34 C.F.R. § 300.509(a).

Reece Erlichman SPR22/0602 Page 4 March 25, 2022 In its March 24th addendum, the Bureau provided copies of a hearing request form and the Bureau’s hearing rules. Furthermore, the Bureau stated: In Massachusetts, the form (see attached) required pursuant to [34 C.F.R. § 300.509(a)] has been entitled “Hearing Request Form” [rather than a “Due Process Complaint”]. [Further, t]he language of Rule I of the [Bureau’s] Hearing Rules for Special Education Appeals (see attached) which sets forth requirements for and procedures attendant to the filing of a Hearing Request, mirrors the elements of 34 C.F.R. 300.507 and 34 C.F.R. 300.508, the IDEA provisions which address requirements/procedures regarding the filing of a due process complaint. The Bureau’s hearing rules state: The hearing request must contain the following information: Name and address of student; Name, address, and telephone number of the person requesting hearing, parent(s), Legal Guardian, if any, individual given court-appointed educational decision-making authority, if any, duly appointed educational surrogate parent, if any, and/or individual with whom the child lives and who is acting in the place of the parent; Relationship to student of person requesting hearing; Name of programmatically and fiscally responsible school district(s) and/or name of state educational agency or other state agency(ies); Name of the school the child is attending; In the case of a homeless child or youth, within the meaning of the McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11434a(2)), available contact information for the child and the name of the school the child is attending; If applicable, the name, address, phone number, and fax number of the attorney or advocate representing the party who is requesting a hearing; The nature of the disagreement, including facts relating to such disagreement, and; A proposed resolution of the disagreement to the extent known and available to the party at the time] … A parent or agency shall request an impartial due process hearing within two (2) years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint… Div. of Admin. Law App. Bureau of Special Educ. App., Hearing Rules for Special Education Appeals (2019). In light of the above, I find that the hearing requests may be withheld in their entirety pursuant to IDEA and its Regulations. As such, I decline to opine on whether the records may be withheld in their entirety pursuant to Exemption (c).

Reece Erlichman SPR22/0602 Page 5 March 25, 2022 Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Fay-Martin 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, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Collins Fay-Martin