Russ Williston v. Nashoba Regional School District (SPR 20253091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2025 SPR25/3091 Ross Mulkerin Records Access Officer Nashoba Regional School District 50 Mechanic Street Bolton, MA 01740 Dear Mr. Mulkerin: I have received the petition of Russ Williston appealing the response of the Nashoba Regional School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 11, 2025, Mr. Williston requested: Grade data recorded in PowerSchool for Honors Physics Courses at Nashoba Regional High School for the 2024-2025 school year. Including: - Instructor for the section[;] - The students sex[;] - The assignment name (or marking period for end of period or final grades)[;] - The recorded grade[.] Previous Appeal This request was the subject of a previous appeal. See SPR25/2829 Determination of the Supervisor of Records (October 6, 2025). In my October 6th determination, I ordered the District to clarify whether it possesses records responsive to the request. The District responded on October 17, 2025. Unsatisfied with the District’s response, Mr. Williston petitioned this office and this appeal, SPR25/3091, 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 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

Ross Mulkerin SPR25/3091 Page 2 November 4, 2025 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 District’s October 17th Response In its October 17, 2025 response, the District stated, “[t]he District is not in possession of a record containing all of the requested data.” In addition, the District cited the Family Educational Rights and Privacy Act (FERPA), as it operates through Exemption (a) of the Public Records Law, in support of withholding “individual student records.” Current Appeal In his appeal petition, Mr. Williston argued against the applicability of Exemption (a) and stated, “[t]he district most certainly has all of the responsive data… The district has not yet estimated the number of responsive records being withheld.” In a telephone conversation with this office on October 29, 2025, the District clarified that although it possesses responsive information that can be extracted from various locations, there is no single responsive record which contains all of the requested information. 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).

Ross Mulkerin SPR25/3091 Page 3 November 4, 2025 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) In its response, the District 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. Under Exemption (a), the District argued: The requested records are protected student records under the Family Educational Rights and Privacy Act… Education records are records, no matter their form or location, which directly relate to a student and are maintained by an educational

Ross Mulkerin SPR25/3091 Page 4 November 4, 2025 agency or institute… Personally identifiable student information includes a student’s name, name of the student’s parents or other family members, address of the student or student’s family, or any other information that alone or in combination is linked or linkable to a specific student. The Honors Physics courses at Nashoba Regional High School are small cohorts consisting of 16 students per class and 32 students total for the 2024-2025 school year. When providing a parent and/or student with access to records containing other students’ grades and gender, even if the student names were withheld, a parent and/or student may nevertheless be able to reidentify which grades belong to specific students, which violates the other students’ privacy rights under FERPA. There is no applicable FERPA exception in this case. In Camera Inspection In order to facilitate a determination as to the applicability of the District’s claims to withhold the responsive records pursuant to FERPA and Exemption (a) of the Public Records Law, the District must provide this office with un-redacted copies of the responsive records for in camera inspection. After I complete my review of the records, I will return them to your custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Ross Mulkerin SPR25/3091 Page 5 November 4, 2025 Order Accordingly, the District is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Russ Williston