Christina Batsarisaki v. Wachusett Regional School District (SPR 20240162)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 1, 2024 SPR24/0162 Barry Sclar Director of Technology and Communication Records Access Officer Wachusett Regional School District 1745 Main Street Jefferson, MA 01522 Dear Mr. Sclar: I have received the petition of Christina Batsarisaki appealing the response of the Wachusett Regional School District (District) 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. Batsarisaki requested, “... copies of any, and all Circuit Breaker Claims made for [an identified individual] placement at Crossroads and transportation from June 2022 to current date.” Prior Appeals This request was the subject of prior appeals. See SPR23/2377 Determination of the Supervisor of Records (October 23, 2023); SPR23/2818 Determination of the Supervisor of Records (December 5, 2023) and SPR23/3058 Determination of the Supervisor of Records (January 4, 2024). In my January 4th determination, it was my understanding that the District intends on providing a further response to Ms. Batsarisaki. The District responded on January 18, 2024. Unsatisfied with the response, Ms. Batsarisaki petitioned this office and this appeal, SPR24/0162, 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). 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

Barry Sclar SPR24/0162 Page 2 February 1, 2024 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. Att’y 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Batsarisaki’s purpose in making the request has no bearing on the public status of any existing responsive records. The District’s January 18th Response In its January18, 2024 response, the District provided a redacted “non-exempt public record: documentation of all Circuit Breaker claims submitted by the Wachusett Regional School District to the Massachusetts Department of Elementary and Secondary Education, since June 2022, redacted of all personally identifiable information.” In its December 19, 2023 response, the District cited Exemptions (a) and (c) of the Public Records Law to withhold the requested record. 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. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Barry Sclar SPR24/0162 Page 3 February 1, 2024 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 December 19th response, the District cited the Family Educational Rights and Privacy Act (“FERPA”) 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 20 U.S.C. 5 1232g(a)(4)(i-ii). FERPA defines “personally identifiable information” as including, but not limited to: (a) 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; (f) 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. Current appeal In her appeal, Ms. Batsarisaki stated, “I am writing to appeal the WRSD and the records they provided as they are not specific to my child[.] This is a summary form generated by DESE of all the claims the district submitted. I want the actual claim form specific to my child[.]” In its January 18th response, the District advised, “[d]ue to the reasons set out in the December 19, 2023 correspondence, a Circuit Breaker claim for a specifically identified student

Barry Sclar SPR24/0162 Page 4 February 1, 2024 is exempt in its entirety under the Public Records Law. However, the District is able to provide you with its complete Circuit Breaker claims, redacted of all personally identifiable information, without acknowledging whether it includes a specifically identified student who receives the special educational services for which Circuit Breaker applies.” In its December 19th response, the District advised, “[a] Circuit Breaker claim of any specifically identified student constitutes, in its entirety, personally identifiable information in an education record which is specifically exempt from disclosure by statute, namely, the Family Educational Rights and Privacy Act. 20 U.S.C. § 1232g(a)(4)(i-ii); 34 C.F.R. § 99.3. This is because the mere existence of a Circuit Breaker claim is a disclosure that the student has a disability and an Individualized Education Program.” Based on the District’s response, I find it has met its burden to withhold the responsive record from disclosure under FERPA, as it operates through Exemption (a) of the Public Records Law. See Champa v. Weston Pub. Sch., 473 Mass. 86, 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.”). Conclusion Accordingly, whereas I find the District may permissibly withhold the responsive document from disclosure under Exemption (a), I decline to opine on the District’s Exemption (c) claim supporting non-disclosure of the withheld document. I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Christina Batsarisaki