Marion J. King v. Hampden-Wilbraham Regional School District (SPR 20220954)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 12, 2022 SPR22/0954 Aaron Osborne Director of Finance, Operations and Human Resources Hampden-Wilbraham Regional School District 621 Main Street Wilbraham, MA 01095 Dear Mr. Osborne: I have received the petition of Marion J. King appealing the response of the Hampden- Wilbraham 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 16, 2022, Ms. King requested a copy of: “Massachusetts Department of Elementary and Secondary Education Letter(s) of Finding for complaint PRS 5421, PRS 5491 and PRS 4755 redacted of any confidential information.” Prior appeals Indicating she had not received a response to her January 16th request, Ms. King previously petitioned the Supervisor of Records (Supervisor). Subsequently, the School provided responses on March 11, 2022 and April 19, 2022. I closed the prior appeals in light of the School’s responses. See SPR22/0495 and SPR22/0887 Determinations of the Supervisor (March 11, 2022 and April 22, 2022). Current appeal As a result of the School’s April 19th response withholding the records in their entirety, Ms. King again petitioned the Supervisor, and the current appeal was opened. The School’s response asserts that the documents are exempted from disclosure because they are student records. The School further asserts the requestor is “…not entitled to this information, even in its redacted form, because [Ms. King is] an unauthorized third party…” 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 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

Aaron Osborne SPR22/0954 Page 2 May 12, 2022 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. 603 C.M.R. 23.00 In its April 19th response, the School asserts that the Letters of Finding cannot be provided because they are restricted student records under 603 C.M.R. 23.00. 603 C.M.R. 23.00 states in relevant part: 603 CMR 23.00 is promulgated by the Board of Education pursuant to its powers

Aaron Osborne SPR22/0954 Page 3 May 12, 2022 under M.G.L. c. 71, § 34D which directs that "the board of education shall adopt regulations relative to the maintenance of student records by the public elementary and secondary schools of the commonwealth," and under M.G.L. c. 71, § 34F which directs that "the board of education shall adopt regulations relative to the retention, duplication and storage of records under the control of school committees, and except as otherwise required by law may authorize the periodic destruction of any such records at reasonable times." 603 C.M.R. 23.00. Redactions within responsive records The School is advised, the Supreme Judicial Court (SJC) found that with respect to special education records, “both exemption (a) and exemption (c) to the definition of public records in G. L. c. 4, § 7, Twenty-sixth, apply to the agreements, but that personally identifying information in the agreements is subject to redaction, and when the agreements are properly redacted, they must be disclosed.” Champa v. Weston Public Schools, 473 Mass. 86, 98-99 (2015). With respect to Exemption (a), the SJC refers to the Family Educational Rights and Privacy Act (FERPA) and found, “[t]he analysis to determine what redaction is necessary will be a case-by-case determination that considers the request, the school and the community, and the availability to the requestor of other information that indirectly identifies the student. 34 C.F.R. §§ 99.3, 99.31(b)(1).” Id. at 93. The SJC further indicates the following: The agreements may contain information that amounts to an unwarranted invasion of the student’s personal privacy. As previously discussed, the agreements may link the name of the individual student (and his or her family) to information about the services and programming the child will receive and information about the child’s disability, progress, and needs. Further, the agreements are likely to identify the out-of-district school, which may indirectly identify the child’s disability. This type of information is highly personal, and disclosure may result in embarrassment and potentially lead to stigma, bringing it within the scope of exemption (c). Id. at 97. With respect to Exemption (c), the SJC indicates “‘[i]n assessing whether the documents contain identifying information, the inquiry must be considered ‘not only from the viewpoint of the public, but also from the vantage of those who [are familiar with the individual].’ Dep’t of the Air Force v. Rose, 425 U.S. 352, 380 (1976).” Id. at 97-98.

Aaron Osborne SPR22/0954 Page 4 May 12, 2022 Based on the SJC’s decision in Champa, it is unclear why the School cannot redact the Letters of Finding to remove all personally identifiable information that may directly or indirectly identify the student(s). I find that the School has not met its burden in denying access to the requested records in their entirety. Conclusion Accordingly, the School is ordered to provide Ms. King with a response 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 J. King, SPEDWatch, Inc.