Megan Hamilton-McKeon v. Old Rochester Regional School District (SPR 20241114)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 29, 2024 SPR24/1114 Michael Nelson Superintendent of Schools Old Rochester Regional School District 135 Marion Road Mattapoisett, MA 02739 Dear Superintendent Nelson: I have received the petition of Megan Hamilton-McKeon appealing the response of the Old Rochester Regional School District (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 29, 2024, Ms. Hamilton-McKeon requested the following records: 1. All notes, records, documents, correspondence, reports, audiotapes, interviews and/or emails concerning or relating to any previous discipline of [a named student] at either the Old Rochester Regional High School or previous schools he attended. 2. A full list of [the named student]’s teachers for this year (2015/16 school year) and last year. 3. All notes, documents, correspondence, audiotapes, reports, or emails, concerning or related to interviews with individuals including other students, teachers and parents regarding [the named student]’s conduct at school. The School responded on April 12, 2024, denying the request, and claiming that the responsive records were withheld pursuant to Exemption (a) of the Public Records Law and multiple statutes, along with Exemption (c). See G. L. c. 4, § 7(26)(a), G. L. c. 71, §§ 34D, 34E. Unsatisfied with the School’s response, Ms. Hamilton-McKeon appealed, and this case 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 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 Michael Nelson SPR24/1114 Page 2 April 29, 2024 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. 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. The School’s April 12th Response In its April 12, 2024 response, the School cites Exemption (a) of the Public Records Law, G. L. c. 71, §§ 34D, 34E, and the Family Educational Rights and Privacy Act of 1974 (FERPA), along with Exemption (c) for withholding responsive records. See G. L. c. 4, § 7(26)(a). 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

Superintendent Michael Nelson SPR24/1114 Page 3 April 29, 2024 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. FERPA The Family Educational Rights and Privacy Act (FERPA) is a federal statute and provides in pertinent part: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization . . . 20 U.S.C. § 1232g(b)(1). (4)(A) For the purposes of this section, the term “education records” means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials which-- (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution 20 U.S.C. 1232g(a)(4)(A). Massachusetts Student Records Regulations Additionally, in its response, the School cites G. L. c. 71, § 34D and 603 C.M.R. 23.07(4), which provide in pertinent parts as follows: The board of education shall adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the commonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or any other records concerning such pupil which are kept or are required to be kept. G. L. c. 71, § 34D. Student Record shall consist of the Transcript and the Temporary Record, including all information--recording and computer tapes, microfilm, microfiche, or any other materials--regardless of physical form or characteristics concerning a student that is organized on the basis of the student’s name or in a way that such student may be individually identified, and that is kept by the public schools of

Superintendent Michael Nelson SPR24/1114 Page 4 April 29, 2024 the Commonwealth. The term as used in 603 CMR 23.00 shall mean all such information and materials regardless of where they are located, except for the information and materials specifically exempted by 603 CMR 23.04. 603 C.M.R. 23.02 (emphasis in original). Access of Third Parties. 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. 603 C.M.R. 23.07(4). In its April 12th response, under the statutes and regulations cited above, the School argues the following: [The] requests specifically seek records related to a particular student at the District and their discipline, course schedule, and conduct. Any responsive records would be maintained by the District and directly relate to this particular student and their education, and would therefore constitute confidential student/education records. This information is exempt information pursuant to M.G.L. c.4, §7(26)(a), which exempts from public disclosure all information specifically or by necessary implication exempted from disclosure by statute with the relevant statutory authority being M.G.L. c.71, §§34D and 34E, as implemented through 603 CMR 23.07(4), and the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. §1232g. In addition, information which, in conjunction with the other information provided and other information that is or has been made available publicly would result in a “grave risk of indirect identification” of the subject and would therefore result in the disclosure of protected information, is also exempt from disclosure. See Champa v. Weston Public Schools, 473 Mass. 86 (2015). Given that [Ms. Hamilton-McKeon is] seeking records related to an identified student, any disclosure of information regarding or related to this student, even with all specifically identifying information redacted, is likely to reveal exempt information regarding the student because it is clear from the request to whom the records relate. As such, these student/education records are exempt from production under Exemption (a) and are being withheld in their entirety. Based on the School’s response, and the definition of student records provided in the statutes and regulations above, I find that the School has met its burden to withhold the responsive records under Exemption (a) of the Public Records Law and the statutes and regulations cited above. Consequently, I find it is unnecessary to address the School’s claims under Exemption (c).

Superintendent Michael Nelson SPR24/1114 Page 5 April 29, 2024 Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Hamilton-McKeon 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: Megan Hamilton-McKeon