Ben Tobin v. Mohawk Trail Regional School District (SPR 20230636)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 18, 2023 SPR23/0636 Karen Totman Executive Secretary to the Superintendent of Schools Mohawk Trail Regional School District 24 Ashfield Road Shelburne Falls, MA 01370 Dear Ms. Totman: I have received the petition of Ben Tobin appealing the response of the Mohawk Trail Regional School District (District/MTRSD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 24, 2022, Mr. Tobin requested a copy of the “…district’s raw literacy data. Two school committee meetings ago there was a data presentation that summarized the data in graph form. I would like to request the raw, unfiltered results that served as the basis for that presentation.” Previous appeal This request was the subject of a previous appeal. See SPR23/0151 Determination of the Supervisor of Records (February 7, 2023). The District provided a response on February 9, 2023. Unsatisfied with the District’s response, Mr. Tobin petitioned this office and this appeal, SPR23/0636, 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

Karen Totman SPR23/0636 Page 2 April 18, 2023 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 District’s February 9th response In its February 9, 2023 response, the District cited Exemption (a) of the Public Records Law to withhold the requested records in their entirety. 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 Att’y 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 cited the Family Educational Rights and Privacy Act (FERPA) and G. L. c. 71, s. 34D and 603 C.M.R. 23.00 et.seq. to withhold the requested records. “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

Karen Totman SPR23/0636 Page 3 April 18, 2023 20 U.S.C. § 1232g(a)(4)(i-ii). FERPA defines “personally identifiable information” as including, but not limited to: 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(4) which 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 C.M.R. 23.07(4). In its response, the District asserted, “[d]ue to the small student body of the MTRSD students are easily identifiable even if the student’s name is redacted and therefore should not be disseminated to any group or individual familiar with District students. The MTRSD will not be sending the requested raw literacy data ...” The District further stated, “[t]he information we have withheld is confidential, identifiable, student record information and if we were to provide this document, it would be in violation of state and federal student records laws and regulations.” In camera inspection In order to facilitate a determination as to the applicability of the District’s claims to withhold the requested records, the District must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4).

Karen Totman SPR23/0636 Page 4 April 18, 2023 The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the District is ordered to provide this office with an un-redacted copy of the requested records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Ben Tobin