Patricia and John D'Ambrosio v. Andover, Town of - Public Schools (SPR 20250432)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 25, 2025 SPR25/0432 Nicole Kieser Director of Communications Andover Public Schools 30 Whittier Court Andover, MA 01810 Dear Ms. Kieser: I have received the petition of Patricia D’Ambrosio appealing the response of the Andover 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 January 13, 2025, Ms. D’Ambrosio requested, “all interdepartmental or interpersonal documents, emails, text messages, transcripts of any kind, videos, pictures, notes… by any member of APS staff and/or administration that relate to, are the subject, mentioned explicitly… or refer to in any way: [three named individuals] on any topic, subject, or matter.” The School provided a response on January 28, 2025. Unsatisfied with the School’s response, Ms. D’Ambrosio petitioned this office and this appeal, SPR25/0432, was opened as a result. Status of Requestor In her appeal petition, Ms. D’Ambrosio states, “[w]e are [a named individual’s] grandparents and legal guardians which the school knows and has the paperwork for.” 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. D’Ambrosio’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. It is unclear if Ms. D’Ambrosio may have a greater right of access to the responsive record outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Ms. D’Ambrosio a greater right of access to the responsive 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

Nicole Kieser SPR25/0432 Page 2 February 25, 2025 record. 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. The School’s January 28th Response In its January 28, 2025 response, the School cites Exemption (a) of the Public Records Law to withhold the responsive 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. 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

Nicole Kieser SPR25/0432 Page 3 February 25, 2025 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 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, 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. (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). 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).

Nicole Kieser SPR25/0432 Page 4 February 25, 2025 In its January 28th response, the School states, “documents, emails, text messages, transcripts, videos, pictures, and notes related to a specific student are all education records which contain information directly related to the student and are maintained by the District. The requested records may not be redacted to remove personally identifiable information because the information is requested by a person who the District reasonably believes knows the identity of the student to whom the education record relates.” Based on the School’s response, it is unclear how all the responsive records constitute “education records” as defined under FERPA. The School is advised that, under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Accordingly, the School’s response did not contain the specificity required in a denial of access to public records. Further, the School did not identify the records in its possession that it intends to withhold from disclosure. To deny access to a record or portion of 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). Additionally, it is unclear why the records may be withheld in their entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Ms. D’Ambrosio with a response to her request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. D’Ambrosio may appeal the substantive nature of the School’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Patricia D’Ambrosio