Ellen Subramaniam v. Wellesley, Town of - Public Schools (SPR 20242646)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 4, 2024 SPR24/2646 Lilian Malo School Records Access Officer Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Malo: I have received the petition of Ellen Subramaniam appealing the response of the Wellesley 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 August 6, 2024, Ms. Subramaniam requested, “…the matriculation data for [the School’s] Class of 2024. The data should include all college names and the number of [the School’s] students attending each college. Please also send the data for the [School’s] Class of 2023 as I’d like to check for any updates.” Previous Appeal The request was the subject of a previous appeal. See SPR24/2493 Determination of the Supervisor of Records (September 18, 2024). In my September 18th determination, I found that where Ms. Subramaniam’s request was originally submitted on August 6, 2024 and the School had not provided responsive records, the School had not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). The School responded on September 18, 2024. Unsatisfied with the School’s response, Ms. Subramaniam petitioned this office and this appeal, SPR24/2646, 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

Lilian Malo SPR24/2646 Page 2 October 4, 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. 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 September 18th response In its September 18, 2024 response, the School stated that it is withholding “portions of the requested records under Exemptions (a) and (c)” of the Public Records Law. Current Appeal In the appeal petition, Ms. Subramaniam stated, Although WPS agreed to release attendance numbers for any school with more than five enrolled WHS students, it refused to provide the responsive information for schools with five or fewer students. As the basis for withholding this information, WPS cites exemptions (a) and (c) to the Massachusetts Public Records Law (G.L. c. 4 § 7(26)(a) and (c)). In support of its claim, WPS states that college matriculation data is part of a student’s education record pursuant to Family Educational Rights and Privacy Act (“FERPA”) ... and the Massachusetts Student Records Law... WPS also claims that disclosing matriculation data for schools With five or fewer students in attendance would constitute an unwarranted invasion of privacy. I seek de-identified matriculation data consisting of (1) college names and (2) number of WHS students attending each named college for the WHS classes of 2024 and 2023—regardless of the number of Wellesley students enrolled. 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).

Lilian Malo SPR24/2646 Page 3 October 4, 2024 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) 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. § 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.

Lilian Malo SPR24/2646 Page 4 October 4, 2024 In its response, the School asserts, Here, you have requested matriculation data for the class of 2023 and 2024. This information is part of a student’s academic record. The data is held by an educational institution – the School Department. Thus, these records constitute educational records under FERPA and student records under the Massachusetts Student Records Law. The Department cannot produce them unless they can be redacted in a way to remove all identifying information, which is not possible in this case. While WPS can redact the name of any particular student, an individual with knowledge of the classes in question would still be able to connect the data shown with a particular student for schools with five or fewer enrolled students. Many colleges were attended by only a small number of WPS students, with some colleges being attended by only 1 student. With such a small subset of students attending each college, releasing the data by school and corresponding number of students could lead to identification of the enrolled student by an individual with a reasonable familiarity with the school population. Refusing to release such information is also consistent with the Department of Elementary and Early Education, which refrains from publishing Advanced Placement performance data for students in class sizes of less than 10. In camera inspection In order to facilitate a determination as to the applicability of the School’s claims to withhold a portion of the records pursuant to Exemptions (a) and (c) of the Public Records Law, the School 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 records. See 950 C.M.R. 32.08(4). 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).

Lilian Malo SPR24/2646 Page 5 October 4, 2024 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 School is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Ellen Subramaniam Emily A. Meehan, Esq., Harrington Heep, LLP