Jenn Ferri v. Attleboro, City of - Public Schools (SPR 20251267)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 19, 2025 SPR25/1267 David Sawyer Superintendent Attleboro Public School District 100 Rathbun Willard Drive Attleboro, MA 02703 Dear Superintendent Sawyer: I have received the petition of Jenn Ferri appealing the response of the Attleboro Public 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 20, 2025, Ms. Ferri requested: [1] Aspen Search Logs a. A record of all Aspen system searches conducted by [an identified individual] between March 4 and March 18, 2025, including but not limited to March 17 around 11:40 am. b. This should include time stamps, and the categories of data accessed (e.g., disciplinary, IEP, health), with student names redacted to protect privacy. [2] Student Record Access Logs a. Any system-generated logs showing student records reviews by [an identified individual] during the same date range. b. Please include what types of information were accessed, even if redacted for identifying details. [3] Justification Documentations a. Any documentation where [an identified individual] provided a reason for accessing records of students not assigned to her caseload. [4] Policies and Training Materials a. Current district or school policies on staff access to student records in Aspen. b. Training materials or staff guidelines regarding: i. FERPA compliance ii. Confidentiality and proper use of student data iii. Disclosure of student information to other students or unauthorized parties iv. Consequences for data misuse or breaches 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

David Sawyer SPR25/1267 Page 2 May 19, 2025 [5] Complaints or Investigations (Past 3 Years) a. Any prior formal or informal complaints, investigations, or disciplinary actions involving [an identified individual] related to student information access or disclosure. b. Any similar incidents involving other staff member accessing or disclosing student information without proper authorization. [6] Parent Notification Protocols a. Any policy outlining when parents are notified if their child’s records are accessed by someone not assigned to them as a counselor, case manager, or teacher. Previous Appeal This request was the subject of a previous appeal. See SPR25/0935 Determination of the Supervisor of Records (April 15, 2025). In my April 15th determination, I learned that the School intended to provide Ms. Ferri with a further response. The School provided a response on April 30, 2025. Unsatisfied with the School’s response, Ms. Ferri petitioned this office and this appeal, SPR25/1267, 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); 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. Current Appeal In her appeal, Ms. Ferri states: [1] Student Record Access Logs: Redactions Are Lawful and Required

David Sawyer SPR25/1267 Page 3 May 19, 2025 APS claims that redacted access logs must be withheld in full under FERPA and M.G.L. c. 71, §§ 34D–34E. This is legally incorrect…. [2] Personnel Exemption: Public Interest Outweighs Privacy APS improperly relies on M.G.L. c. 4, § 7(26)(c) (‘personnel exemption’) to withhold records of complaints and investigations into improper access of student information.… Further, the request specifically seeks documentation related to professional misconduct, not personal matters, which courts have distinguished from ‘personnel records.’ The School’s April 3rd and 30th Responses In its April 3, 2025 response, the School provided responsive records to Items 1a, 1b, and 4b. Also, the School stated it searched for and found no responsive records related to Items 3, 4a, and 6. In its April 30, 2025 response, the School states that it again searched for and found no responsive records for Items 3, 4a, and 6. The School also cited Exemptions (a) and (c) of the Public Records Law to withhold the responsive records for Items 2 and 5, respectfully. Item 2 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

David Sawyer SPR25/1267 Page 4 May 19, 2025 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. 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, other than to the following . . . 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). In its April 30th response, the School states: The records requested are confidential in accordance with the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232g, and its implementing regulations at 34 C.F.R. § 99 as the records sought contain personally identifiable information regarding minor schoolchildren…. Additionally, your request as written targets a specific individual or individuals, who appears to be known to you. In the context of your request, you described a situation in which you appear to believe a particular student’s records were accessed by a specifically named staff member at a certain time. Based on the specificity of your request, including narrowing your request to an exact date and time and indicating the gender of the student whose information is at issue, even if the School were to redact portions of the records requested, the documents would contain information that was requested by a person the School reasonably believes knows the identity of the student(s) to whom the record relates. Providing such information, even in part, would constitute a violation of FERPA, 20 U.S.C. 1232g; 34 C.F.R. §99.3; M.G.L. c. 71, §§ 34D, 34E, and 603 CMR §

David Sawyer SPR25/1267 Page 5 May 19, 2025 23.00. Therefore, these records are necessarily exempted from disclosure by statute and the School is required to withhold the requested documents in whole in accordance with M.G.L. c. 4, § 7(26)(a). The School is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Based on the School’s response and the definition of student records provided in the statutes and regulations above, I find it has not met its burden to withhold the requested records pursuant to Exemption (a) of the Public Records Law. It is unclear how the requested records resemble the records listed in the statute. See 20 U.S.C. 1232g(a)(4)(A). I find that the School must identify the records being withheld and clarify how they fall under the statute as contemplated. Item 5 Exemption (c) Exemption (c) applies to: 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). When analyzing a privacy claim, there is 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.

David Sawyer SPR25/1267 Page 6 May 19, 2025 Under Exemption (c), the School states: Here, you requested records regarding complaints or investigations involving any similar incidents to the one described in your initial request. If such records exist, they will necessarily contain material with details which are highly personal in nature. Specifically, any records regarding a specifically named individual accessing or disclosing student information would not only necessarily contain highly personal information regarding that staff member but would also contain intimate details of the student’s school and personal profile as well. Additionally, public disclosure of complaints or investigations regarding specifically named individuals would result in personal embarrassment to an individual of normal sensibilities. Any investigation regarding staff members, by its very nature, contains information that is highly personal including evaluations, disciplinary documents and promotion, demotion or termination documentation. Any information regarding an individual’s employment status or disciplinary documents may lead to personal embarrassment to a person of normal sensitivities. Furthermore, the information you request is not publicly available from any other source. For all of the reasons cited above, the District is required to withhold the requested documents in accordance with M.G.L. c. 4, § 7(26)(c). Based on the School’s response, although portions of the responsive records may fall under Exemption (c), it is unclear how the records can be withheld in their entirety. The School must clarify whether segregable portions of the report can be provided. See G. L. c. 66, § 10(a); See G. L. c. 66, § 10(a); Reinstein, 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). Further, it is unclear what records the School possesses that it is withholding from disclosure. 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 . . .”). Therefore, the School must identify the records it has in its possession that it is withholding under Exemption (c). Items 3, 4a, and 6 No Duty to Create Records Please note that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the

David Sawyer SPR25/1267 Page 7 May 19, 2025 records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In her appeal petition, Ms. Ferri argues the following: APS asserts that no documents exist concerning: Justifications for staff accessing student records[,] Policies governing such access in Aspen[,] Parent notification procedures when unauthorized access occurs[.] This conflicts with 603 CMR 23.00, which requires schools to establish policies regarding access and disclosure of student records. Further, M.G.L. c. 71, § 34H requires parent notification in certain data breach cases. If APS truly lacks such documentation, it may be in violation of its obligations under both state regulation and common data governance standards…. In the School’s April 3rd and April 30th responses, the School confirmed that it searched for and found no responsive records to Ms. Ferri’s request for Items 3, 4a, and 6. Where the School has confirmed that it does not possess additional responsive records, I find that this portion of Ms. Ferri’s appeal is resolved. Conclusion Accordingly, the School is ordered to provide Ms. Ferri 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. Sincerely, Manza Arthur Supervisor of Records cc: Jenn Ferri