Maureen Ronayne v. Winchester, Town of - Public Schools (SPR 20232418)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2023 SPR23/2418 Frank Hackett, Ed.D. Superintendent Winchester Public Schools 40 Samoset Road Winchester, MA 01890 Dear Superintendent Hackett: I have received the petition of Maureen Ronayne appealing the response of the Winchester Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 25, 2023, Ms. Ronayne requested, “…any settlement agreements from September 1, 2023 through today.” The School provided a response on October 10, 2023. Unsatisfied with the School’s response, Ms. Ronayne petitioned this office and this appeal, SPR23/2418, 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) (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). 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 Frank Hackett SPR23/2418 Page 2 October 24, 2023 The School’s October 10th Response In its October 10, 2023 response, the School cited Exemptions (a) and (c) of the Public Records Law to withhold a settlement agreement. Under Exemption (a), the School cites FERPA and Champa v. Weston Public Schools, 473 Mass. 86, 91-92 (2015). 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, 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. Under Exemption (a), the School states: As defined by FERPA, “personally identifiable information” includes, but is not limited to … (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.”… Most relevant to [Ms. Ronayne’s] request is sub- section (g)… In this case, [the School] has reason to believe that [Ms. Ronayne] know[s] the identity of the individual and/or individuals for whom [she is] seeking confidential student records. Without getting into details that would cause [the School] to identify the student in this response, [the School] has reason to believe that [Ms. Ronayne] know[s] the identity of the individual for whom [she is] seeking the record based on both [Ms. Ronayne’s] prior relationship with the

Superintendent Frank Hackett SPR23/2418 Page 3 October 24, 2023 individuals involved and the narrow and specific nature of [Ms. Ronayne’s] request. Additionally, because this is the only student for which a settlement agreement exists during that relatively narrow time period, the responsive document would be linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty. Therefore, because there is only one (1) responsive settlement agreement to [Ms. Ronayne’s] request, the release of that document would be linkable to a specific student, and [the School] has a reasonable basis to believe that you know the identity of the student for whom you are seeking educational records, [the School] cannot “de-identify” the settlement agreement, even if [the School] were to redact the student’s name and other personal identifiers. Accordingly, in compliance with FERPA and Massachusetts law, and in line with the Supreme Judicial Court’s holding in Champa, [the School] is required to withhold the entire settlement agreement. Redactions within Responsive Records 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 requester of other information that indirectly identifies the student. 34 C.F.R. §§ 99.3, 99.3 l(b)(l).” 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).

Superintendent Frank Hackett SPR23/2418 Page 4 October 24, 2023 Id. at 97. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. 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. When citing Exemption (c), the School states:

Superintendent Frank Hackett SPR23/2418 Page 5 October 24, 2023 In regard to [Ms. Ronayne’s] request, the public interest in obtaining the settlement agreement involving a minor student with disabilities does not substantially outweigh the serious invasion of privacy that would follow… similar to the statutory exemption, schools must disclose information in a settlement agreement that is “de-identified” of personally identifiable information… Here, the redaction of personally identifiable information from the settlement agreement responsive to your request does not erase the unwarranted invasion of privacy for the minor special education student because there is only one (1) settlement agreement responsive to your request, the document is linked or linkable to a specific student (as set forth above), and [the School] has reasonable belief that [Ms. Ronayne] know[s] the identity of the student. Accordingly, even with personally identifiable information redacted, the settlement agreement remains exempt pursuant to M. G. L. c. 4, § 7(26)(c). It is not possible to “de-identify” this settlement agreement; thus, [the School] is required to withhold it from public disclosure. Based on the School’s response, I find that the School has demonstrated that the settlement agreement, even if redacted under Exemption (a) would constitute personally identifiable or personal information of a sensitive nature. See Champa, 473 Mass. at 93 (stating that 34 C.F.R. § 99.30, a FERPA regulation, permits disclosure of education records only “after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student’s identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information.”). Accordingly, I find that the School has met its burden to withhold the settlement agreement from disclosure under Exemption (a). Consequently, I decline to opine on the applicability of Exemption (c) of the Public Records Law to the requested records. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Ronayne 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Maureen Ronayne