Kerin Carli v. Hingham, Town of - Public Schools (SPR 20243183)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2024 SPR24/3183 Kathryn Roberts Superintendent Hingham Public Schools 220 Central Street Hingham, MA 02150 Dear Superintendent Roberts: I have received the petition of Kerin Carli appealing the response of the Hingham 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 October 1, 2024, Ms. Carli requested the following: [1.] Data from the services provided in the classroom for [an identified individual] 2022-2023[;] [2.] Data from special education teacher documentation of service [. . . 2022- 2024[;] [3.] Documentation of consult services being implemented . . . 2022-2023[;] [4.] Report on Special Education consult in Fall 2023[;] [5.] Child find/child count public postings 2022-2024 including most recent[;] [6.] Report from DESE on Hingham special education department eval spring 2024[;] [7.] Number of students on IEP placed in private paid private school receiving services[;] [8.] Number of Active IEP students of private paid private school students not being implemented[;] [9.] Paraprofessionals attendance record 2022-2024[;] [10.] [An identified individual’s] attendance record school year 2022-2023[;] [11.] [An identified individual’s] certification and degree and hiring date[;] [12.] Special education staff attendance record for school year 2022-2024[;] [13.] Home tutoring date and dates provided June 2024 for [an identified individual][;] [14.] HPS documents to DESE report for non attendance for [an identified individual] May-Sept 2023[;] [15.] Recording of IEP meeting on March 21, 2024 and May 30, 2024 for [an 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 Kathryn Roberts SPR24/3183 Page 2 December 6, 2024 identified individual]. Previous appeals This request was the subject of previous appeals. See SPR24/2856 Determination of the Supervisor of Records (October 22, 2024) and SPR24/2894 Determination of the supervisor of Records (October 29, 2024). In my October 29th determination, I learned that the School intended on providing a supplemental response. On October 29, 2024, the School provided a response. Unsatisfied with the response, Ms. Carli petitioned this office and this appeal, SPR24/3183, was opened as a result. Status of Requestor In her appeal petition, Ms. Carli states, “[a]s I am entitled to this information, I wish to formally appeal the previous denial of my requests.” 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. Carli’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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); 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.

Superintendent Kathryn Roberts SPR24/3183 Page 3 December 6, 2024 Current Appeal In her appeal, Ms. Carli states, “I am expressing my frustration regarding the challenge I face in obtaining specific information necessary to demonstrate that Hingham Public Schools has not fully implemented my children’s Individualized Education Program (IEP)…. As I am entitled to this information, I wish to formally appeal the previous denial of my requests. It is imperative that I receive the necessary documents to substantiate my claims that Hingham Public Schools has altered, falsified, and misappropriated funds.” The School’s October 29th Response In its October 29, 2024 response, the School cited Exemptions (a) and (c) of the Public Records Law to withhold the responsive records. 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. Family Educational Rights and Privacy Act (FERPA) The Family Educational Rights and Privacy Act (FERPA) is a federal statute and provides in pertinent part:

Superintendent Kathryn Roberts SPR24/3183 Page 4 December 6, 2024 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, other than to the following . . . 20 U.S.C. § 1232g(b)(1). The statute goes on to list seven categories of individuals, agencies, and organizations to which “education records” may be released. In addition, FERPA provides the following limitation on the definition of “education records”: The term “education records” does not include— . . . records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement. 20 U.S.C. § 1232g(a)(4)(B)(ii). In its October 29th response, the School states, “some records requested are considered student records and are protected from disclosure under the Family Educational Rights and Privacy Act (FERPA), which states that no third party shall have access to information in or from a student record without the specific, informed written consent from the eligible student or the parent. This exemption applies even in circumstances where student records are requested by a Student’s parent as part of a public records request.” FERPA provides a mechanism which allows for the public disclosure of information from education records when information classified as personally identifiable information is removed. As indicated above, under 34 C.F.R. 99.3 personally identifiable information includes, but is not limited to, student’s name; name of the student’s parents or other family member; address of the student or student’s family; a personal identifier, such as the student’s social security number, student number, or biometric record; 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 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. Based on the School’s response, it is unclear what records have been withheld, and how the withheld records constitute personally identifiable information or education records as

Superintendent Kathryn Roberts SPR24/3183 Page 5 December 6, 2024 described in the statutes and regulation. Additionally, it is unclear how the records can be withheld in their entirety and why segregable portions cannot be provided. The School must clarify these matters. 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). 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. Under Exemption (c), the School states, “[o]ther documents in the request are personnel records, subject to exemption pursuant to M.G.L c. 4, §7…. The information would result in

Superintendent Kathryn Roberts SPR24/3183 Page 6 December 6, 2024 personal embarrassment to an individual of normal sensibilities and the information discloses intimate details of a highly personal nature.” The School’s response did not contain the specificity required in a denial of access to public records. Based on the School’s response, it is unclear how the withheld records contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the School did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The School must clarify these matters. Further, based on the School’s response, it is unclear what types of records it possesses. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Consequently, the School must identify the records in its possession that it withheld under Exemptions (a) and (c). Conclusion Accordingly, the School is ordered to provide Ms. Carli with a response to the request, provided 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. Ms. Carli may appeal the substantive nature of School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kerin Carli