Cheri Amour Mahan v. Weston, Town of - Public Schools (SPR 20252419)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2025 SPR25/2419 Neil L. Trahan, Ed.D. Assistant Superintendent of Technology & Operations Weston Public Schools 89 Wellesley Street Weston, MA 02493 Dear Dr. Trahan: I have received the petition of Cheri Amour Mahan appealing the response of the Weston 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 June 16, 2025, Ms. Mahan requested: [1] All emails and written communications sent between July 1, 2021, and June 1, 2025, that include any of the following [identified individuals] - where [an identified individual] or his educational placement is mentioned. [2] All budget records, invoices, contracts, or payments made by Weston Public Schools for [an identified individual’s] outplacement services, including LABBB Collaborative and Wellesley Public Schools. [3] All administrative memos, policy documents, or guidelines used between 2021-2025 related to the justification, decision-making or approval process for outplacements or IEP-related removals. [4] Any special education staff training materials or internal procedural manuals that governed IEP team decisions and parental rights during the same period. The School initially responded on June 26, 2025 and August 12, 2025. On August 15, 2025, after correspondence with the School, Ms. Mahan modified her request to seek the following records: [1] All emails, internal or external, including attachments, text messages, and other written communications regarding [an identified individual’s] outplacement, covering: 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

Neil L. Trahan, Ed.D. SPR25/2419 Page 2 August 29, 2025 - Outplacement period: September 1, 2021 – March 31, 2023 - Post-outplacement communications: April 1, 2023 – present - [identified individuals] - Any other Weston Public Schools employee or representative involved in [an identified individual’s] educational placement or related decisions[.] [2] The complete internal investigation report concerning Formal Complaint against [an identified individual], along with all supporting documentation. The School responded to the modified request on August 15, 2025. Unsatisfied with the School’s response, Ms. Mahan petitioned this office and this appeal, SPR25/2419, 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. Status of the Requestor; Reason for the Request 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Mahan’s interest in obtaining the records shall have no bearing on the public status of the responsive records.

Neil L. Trahan, Ed.D. SPR25/2419 Page 3 August 29, 2025 It is unclear if Ms. Mahan may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Ms. Mahan a greater right of access to the responsive records. The School’s August 15th Response In its August 15, 2025 response, the School cited G. L. c. 71, §§ 34D and 34E, as implemented through 603 CMR 23.07(4) and the Family Educational Rights and Privacy Act (FERPA), as they operate through Exemption (a), as well as Exemption (c) of the Public Records Law, to argue that the records responsive to Item 1 of the modified request constitute student records and not public records. In addition, the School stated: …[R]ather than treating this solely as a public records request, the District is responding to your request under student records laws, which provide greater rights of access to your student records. In most instances, the District attempts to permit inspection of student records at no cost to parents and students. However, your request seeks copies of a massive number records and the District has determined that it is simply unable to absorb the expense of providing copies of these records to you without charging you a reasonable fee under 603 CMR 23.07(2)(a). We have determined that a reasonable copying fee is $0.20 per page. The searches you requested have returned 773 pages of emails. At a rate of $0.20, the cost of producing copies of these emails to you is $154.60. Please deliver payment… and we will then proceed to prepare copies of these records for you. We anticipate any such records will be provided within 10 days of our receipt of this payment. Regarding Item 2 of the modified request, the School cited Exemption (c) and Exemption (f) of the Public Records Law to withhold responsive records. Current Appeal In her appeal petition, Ms. Mahan stated, “Weston Public Schools has failed to provide public records I lawfully requested and has attempted to improperly close a matter while withholding my rebuttal from the official record.” In an email to this office on August 15, 2025, Ms. Mahan stated, “[n]o statutory exemptions have been cited for withheld records, as required under M.G.L. c. 66.” On August 18, 2025, Ms. Mahan contested the exemptions to the responsive records and asked this office to order the School to “produce all responsive records, releasing non-exempt portions with appropriate redactions.” In a telephone conversation between the School and this office on August 21, 2025, the School stated that all of the records responsive to Item 1 of the modified request are emails

Neil L. Trahan, Ed.D. SPR25/2419 Page 4 August 29, 2025 maintained by the School that constitute student records and not public records, as they pertain to an individually identified student’s educational placement. 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. G. L. c. 71, §§ 34D and 34E In its August 15, 2025 response, the School cited G. L. c. 71, § 34D, which provides in pertinent part: The board of education shall adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the commonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or any other records concerning such pupil which are kept or are required to be kept. G. L. c. 71, § 34D. Additionally, the School cited G. L. c. 71, § 34E, which provides in pertinent part:

Neil L. Trahan, Ed.D. SPR25/2419 Page 5 August 29, 2025 Each school committee shall, at the request of a parent or guardian of a student, allow such parent or guardian to inspect academic, scholastic, or any other records concerning such student that are kept or are required to be kept, regardless of the age of such student. Each school committee shall, at the request of a student eighteen years of age or older, allow such student complete access to all school records relative to him or her. G. L. c. 71, § 34E. Family Educational Rights and Privacy Act (FERPA) In its response, the School also referenced the Family Educational Rights and Privacy Act (FERPA) as applicable 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: (a) 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. Massachusetts Student Records Regulations Additionally, in its response, the School references 603 C.M.R. 23.00 et seq. Please note that 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,

Neil L. Trahan, Ed.D. SPR25/2419 Page 6 August 29, 2025 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). Further, 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. 603 C.M.R. 23.07(4). 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). First Clause – Personnel Information While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s

Neil L. Trahan, Ed.D. SPR25/2419 Page 7 August 29, 2025 Ass’n, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Ass’n, 431 Mass. at 798. Second Clause – Privacy Analysis under the second clause of 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 clause 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 the second clause of 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 clause 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. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be

Neil L. Trahan, Ed.D. SPR25/2419 Page 8 August 29, 2025 withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass. at 290 n.18. Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Modified Request Item 1 - Emails Under Exemption (a), the School stated: Although framed as a public records request, your first request seeks student records related to [an identified individual]. Student records are exempt from production under the Public Records Law under M.G.L. c.4, §7(26)(a) because student records are confidential under M.G.L. c.71, §§34D and 34E, as implemented through 603 CMR 23.07(4), and the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. §1232g… Based on the School’s August 15th response, and where the School has confirmed the responsive records are emails maintained by the School that would individually identify a student and their educational placement plan, I find the School has met its burden to demonstrate that the records are the type contemplated under G. L. c. 71, §§ 34D and 34E, FERPA, and 34 C.F.R. § 99.3. Accordingly, the School may properly withhold the records under Exemption (a) of the Public Records Law. Where the School has met its burden to withhold the responsive emails under the cited statutes and Exemption (a), I decline to opine on the applicability of Exemption (c) to the responsive records.

Neil L. Trahan, Ed.D. SPR25/2419 Page 9 August 29, 2025 Modified Request Item 2 – Internal Investigation Report Under Exemption (c), the School stated: As to your second request, you seek records from a personnel investigation about a District employee. Any such records constitute information about employees and/or personnel matters that are exempt from public disclosure under M.G.L. c.4, §7(26)(c)… This also applies to information which, in conjunction with the other information provided and other information that is or has been made available publicly would result in a “grave risk of indirect identification” of the subject and would therefore result in the disclosure of protected information… Any records of from a District personnel investigation are absolutely exempt from disclosure under this exemption. In addition, such records would constitute private information exempt under the privacy exemption of M.G.L. c.4, §7(26)(c)… A records custodian must apply the balancing test to each piece of potentially private information in any responsive records. The District has determined that the public interest in the requested records does not substantially outweigh the privacy interest. Although the School indicates that it is withholding the investigation report under both clauses of Exemption (c), it is unclear how the requested record constitutes one of the core categories of personnel information that is useful in making employment decisions regarding an employee. It is additionally uncertain how the School may withhold the investigation report in its entirety under the privacy clause of Exemption (c). Specifically, it is unclear whether the requested record contains intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it is uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. The School must also 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. 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. Under Exemption (f), the School stated: A records custodian may withhold investigation materials in their entirety if the identity of witnesses is known to the requester, because such a record could not possibly be redacted in a manner to avoid identification of witnesses. Your request seeks information related to a personnel complaint you made, and to claims you continue to raise against the District. As such, this information falls within the purposes of the investigatory exemption and is exempt from disclosure.

Neil L. Trahan, Ed.D. SPR25/2419 Page 10 August 29, 2025 Although the identifying information of voluntary witnesses and complainants may be withheld, it is unclear from the School’s response how the investigation report can be withheld in its entirety under Exemption (f). It is also not clear whether the investigation report contains confidential investigative techniques that would be prejudicial to an ongoing investigation if disclosed. Further, the School did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Ms. Mahan 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. The requestor 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: Cheri Amour Mahan