Gerry Mroz v. Melrose, City of - Public Schools (SPR 20241756)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2024 SPR24/1756 Amy Lindquist, Esq. Assistant City Solicitor for School and Labor City of Melrose 360 Lynn Fells Parkway Melrose, MA 02176 Dear Attorney Lindquist: I have received the petition of Gerry Mroz appealing the response of the Melrose 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 March 13, 2024, Mr. Mroz requested: [S]pecific student diagnostic assessment data accessible from i-Ready, the district’s contracted provider of interim assessments. Please produce anonymized (no names or other Personally Identifiable Information), exported student data of individual students’ scaled scores in the content areas of Reading and Math on both the Fall 2023 and Winter 2024 interim assessments, together with their assigned school and assigned grade level. Please send the exported assessment data electronically, in the form of a *.csv file containing data from the following fields (or in the form of a spreadsheet in Excel or Google Sheet format, where each row corresponds to one unique student, and containing the following columns): [1.] “Grade” to report the student’s assigned grade[;] [2.] “School” to report the student’s assigned school[;] [3.] “Fall 2023 Math” to report the student’s overall scaled score in the Math assessment[;] [4.] “Fall 2023 Reading” to report the student’s overall scaled score in the Reading/Literacy assessment[;] [5.] “Winter 2024 Math” to report the student’s overall scaled score in the Math assessment[;] [6.] “Winter 2024 Reading” to report the student’s overall scaled score in the Reading/Literacy assessment[.] 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

Amy Lindquist, Esq. SPR24/1756 Page 2 June 26, 2024 On March 25, 2024, the School responded, and provided a further response on April 4, 2024. Unsatisfied with the School’s responses, Mr. Mroz petitioned this office and this appeal, SPR24/1756, 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). 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 March 25th and April 4th Responses In its March 25, 2024 response, the School provides responsive records in an email attachment titled “iReady Data.csv” and states that “[t]he assigned school the student attends has not been provided.” The School explains, “[p]roviding this information may lead to identification of specific students, which would be a breach of their right to confidentiality of student records and therefor is exempt from disclosure pursuant to the Statutory Exemption (a), student records M.G.L. c. 71, sec. 34D and 34E.” In its April 4, 2024 response, the School again cites G. L. c. 71, § 34D and G. L. c. 71, § 34E as well as 603 C.M.R. 23.00 in its further explanation for withholding “[t]he assigned school the student attends[.]” Current Appeal In his appeal, Mr. Mroz states: I requested… anonymized standardized assessment data of students within the Melrose Public Schools, including their assigned grade level and the school they attend…. [T]he RAO provided a response, including the data within each grade

Amy Lindquist, Esq. SPR24/1756 Page 3 June 26, 2024 across the entire school district, but withholding the school information requested. … I ask the Supervisor to order the RAO to provide the entirety of the requested data including, specifically, the elementary school of attendance. 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. In its March 25, 2024 response, the School cites G. L. c. 71, § 34D, which provides in pertinent part: 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. Additionally, G. L. c. 71, § 34E provides in pertinent part:

Amy Lindquist, Esq. SPR24/1756 Page 4 June 26, 2024 Each school committee shall, at the request of a parent or guardian of a student, allow such parent or guardian to inspect academic, scholastic, or any other records concerning such student that are kept or are required to be kept, regardless of the age of such student. Each school committee shall, at the request of a student eighteen years of age or older, allow such student complete access to all school records relative to him or her. G. L. c. 71, § 34E. In its April 4, 2024 response, the School further explains that its “concern is that students could be identified if we provide the particular school they attend as part of the data set.” Moreover, the School asserts that “[t]he withholding of this information is necessarily implicated by statute- specifically M.G.L. c. 71, sec. 34D and M.G.L. c. 71, sec. 34E and the applicable regulations 603 CMR 23.00 and because providing this information could very likely allow someone to easily identify the specific student.” Please note that 603 C.M.R. 23.02 defines “student record” as follows: 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 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). Additionally, 603 C.M.R. 23.07(4) provides in pertinent part: 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). As part of its April 4th response, the School provides two examples “of why… providing the name of the school that each child attends could lead the public to identifying specific students”: 1. 2 of the District’s elementary schools have students who participate in a specialized special education classroom. Students in this classroom could be easily identified by their scores, which would be significantly lower than their

Amy Lindquist, Esq. SPR24/1756 Page 5 June 26, 2024 grade-level peers due to their disabilities. For example, a student in the specialized classroom at one of the elementary schools is still scoring in 5 grade levels below their peers. 2. In some of our smaller schools, 1 school in particular, there are very few 5th graders with reading skills 2 or more grade levels behind. Identifying the school, grade, and score could lead someone to link that data to specific students without much effort. To the extent that the requested records contains information that falls under the definition of a student record provided in the regulations above, I find the School may withhold those portions from disclosure. However, it is unclear how all information responsive to “[t]he assigned school the student attends” falls under the definition of a student record and therefore may be withheld from disclosure. Specifically, it is unclear how information responsive to “[t]he assigned school the student attends” that is organized in a way that such student may be individually identified cannot be segregated from the responsive records and non-exempt portions provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The School must clarify this matter. Conclusion Accordingly, the School is ordered to provide Mr. Mroz with a response to his request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Gerry Mroz