Alexandra Orn v. Ludlow, Town Of -- Public Schools (SPR 20251732)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 30, 2025 SPR25/1732 Sue Santos Administrative Assistant to the Superintendent Ludlow Public Schools 205 Fuller Street Ludlow, MA 01056 Dear Ms. Santos: I have received the petition of Alexandra Orn appealing the response of the Ludlow 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 April 1, 2025, Ms. Orn sought the following records from December 13, 2024 to the present: [1] Any and all records pertaining to the investigation between [identified individuals]. [2] Any handwritten notes and typed notes related to this investigation and incident. [3] Any and all emails pertaining to this investigation and incident. [4] Any and all correspondence between the East Street Elementary School to Ludlow Boys and Girls Club regarding this incident. [5] Email correspondence from [an identified individual] to the bus company requesting the bus camera video footage for an incident that occurred on December 13th, 2024. [6] Any and all emails pertaining to this investigation and incident between [four identified individuals]. [7] The bullying policy and procedures handbook. [8] Any investigation files or disciplinary records for [three identified individuals]. [9] Job description for the school adjustment counselor hired. Previous Appeal This request was the subject of a previous appeal. See SPR25/1144 Determination of the Supervisor of Records (April 29, 2024). In my April 29th determination, I ordered the School to 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

Sue Santos SPR25/1732 Page 2 June 30, 2025 provide Ms. Orn with a response to her request. The School responded on April 29, 2025. Unsatisfied with the School’s response, Ms. Orn petitioned this office and this appeal, SPR25/1732, was opened as a result. Status of the Requestor Please note that under the Public Records Law 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. Orn’s status will play no role in a determination as the whether the records should be disclosed or withheld 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. See 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. See 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 April 29th Response In its April 29, 2025 response, the School provided records responsive to Items 5, 7, and 9 of the request and stated that it possessed no records responsive to Items 4 and 6 of the request. The School further stated that it possessed no responsive personnel records. The School withheld the remaining responsive records pursuant to the Family Educational Rights and Privacy Act as it operates through Exemption (a) of the Public Records Law.

Sue Santos SPR25/1732 Page 3 June 30, 2025 Current Appeal In her June 16, 2025 appeal to this office, Ms. Orn stated, “I am formally appealing this response on the ground that the records in question have been improperly withheld. These documents fall outside the scope of the Public Records Law, G.L. c. 41, § 97D, and therefore cannot be withheld under exemption (a).” 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, 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 April 29th response, the School stated: One such exemption, G.L. c. 4, §7(26)(a) applies to records, such as student records, that are specifically or by necessary implication exempted from disclosure by statute (i.e., FERPA and Massachusetts Student Records Law). As such, we do not provide student record information in response to a public records request. Here, however, some of the information you are requesting pertains to [an identified individual]. Accordingly, I invite you to contact me to set up a time to discuss your concerns.

Sue Santos SPR25/1732 Page 4 June 30, 2025 Family Educational Rights and Privacy Act (FERPA) “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. 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.

Sue Santos SPR25/1732 Page 5 June 30, 2025 603 C.M.R. 23.07(4) (emphasis in original). Based on the School’s response, it is unclear how the remaining responsive records may be withheld under FERPA. The School merely cites the statute without any further explanation as to the statute’s applicability to the responsive records. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). Further, it is unclear how 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 v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The School must clarify these matters. Additionally, it is unclear from the School’s response what records have been withheld. 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). Therefore, the School must identify the records in its possession that it is withholding under Exemption (a). Conclusion Accordingly, the School is ordered to provide Ms. Orn 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. Orn may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Alexandra Orn Delton DeVose II Frank A. Tiano, Ed.D.