Dan Riley v. Sandwich, Town of (SPR 20253133)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2025 SPR25/3133 Taylor D. White Town Clerk Town of Sandwich 100 Route 6A Sandwich, MA 02563 Dear Mr. White: I have received the petition of Dan Riley appealing the response of the Town of Sandwich (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 9, 2025, Mr. Riley requested the following: [A]ny and all “google form” email correspondence to or from the following employees of the Sandwich Public Schools: [including one specified email address.] The google form emails I am requesting should include any communications containing any of the following keywords or phrases that got automatically inserted into the google form from an email blast to the school community on May 5th: [including a list of 12 search terms.] Please include the communications from May 4, 2025 to June 6, 2025. Previous Appeal This request was the subject of a previous appeal. See SPR25/2651 Determination of the Supervisor of Records (September 19, 2025). In my September 19th determination, I ordered the Town to clarify its claims under Exemption (b) of the Public Records Law, and ordered the Town to identify the records being withheld. Subsequently, the Town responded on October 22, 2025. Unsatisfied with the Town’s response, Mr. Riley petitioned this office, and this appeal, SPR25/3133, 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 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

Taylor D. White SPR25/3133 Page 2 November 7, 2025 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 Town’s October 22nd Response In its October 22, 2025 response, the Town states that “[t]he documents requested are the nominations made by families and caregivers of the Sandwich Public Schools for a ‘Golden Apple Award.’” The Town cites Exemption (b) of the Public Records Law, along with the Family Educational Rights and Privacy Act, G. L. c. 71, §34D, and 603 CMR 23.00, as they operate through Exemption (a) of the Public Records Law, for withholding the responsive records. See G. L. c. 4, § 7(26)(a), (b). 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, 545-46 (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.”

Taylor D. White SPR25/3133 Page 3 November 7, 2025 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 Town cites 20 U.S.C. § 1232, which provides in pertinent part as follows: 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 . . . 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). Massachusetts Student Records Laws and Regulations The Town also cites 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 Town cites 603 C.M.R. 23.00. Please note that 603 C.M.R. 23.02 defines “student record” as follows:

Taylor D. White SPR25/3133 Page 4 November 7, 2025 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). 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) (emphasis in original). In its October 22nd response, under the statutes and regulations cited above, the Town argues the following: Redacting the forms is not an option since the information contains personally identifiable information in violation of the Family Educational Rights and Privacy Act or FERPA (20 U.S.C. § 1232) and G.L. c. 71, §34D and 603 CMR 23.00. The information provided by the families and caregivers can be used to identify the children of families who submitted nominations in violation of their rights to privacy. Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an

Taylor D. White SPR25/3133 Page 5 November 7, 2025 agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In its October 22nd response, under Exemption (b), the Town argues the following: This is an internal award of the Sandwich Public Schools to have families and caregivers the opportunity to recognize staff members who have made a difference in their child’s education by demonstrating empathy, creativity, enthusiasm, and/or determination. This award is a public recognition only; that is, it does not include a financial reward. To make these forms public would discourage families and caregivers from participating and therefore interfere with the intended purpose and execution of the proper performance of the Schools as the governmental unit in the execution of this function. The context of this Golden Apple Award is that families and caregivers submit their nominations on a Google Form. On this form, they provided the following: • The name of the staff member they were nominating for a Golden Apple; • Why they were nominating that educator/staff member; • How the educator/staff member makes a difference in their child’s education; • How the educator/staff member demonstrates creativity, enthusiasm and/or determination; and • Their name and email address. Releasing the form and the information contained therein would inhibit the proper performance of this governmental function. Releasing the nominations submitted by families and caregivers will discourage them from participating in the selection of the educators/staff members to be recognized with the Golden Apple Award. If families know that the form they submit will be shared with educators and staff members, in particular those who they do not nominate, they will be discouraged from doing so for fear of retaliation by those educators/staff members. There is no legitimate interest for the public in these forms. The information on these forms is for the sole purpose of the District determining who is to receive

Taylor D. White SPR25/3133 Page 6 November 7, 2025 this award. The disclosure of this information would be detrimental to this process. It should be noted that this award is not a “popularity contest.” It is not determined by the number of nominations an individual receives; rather, it is awarded to the nominees who best meet the criteria set forth in the May 5, 2025 request for nominees. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (a) and (b) claims made by the Town to withhold responsive records, the Town must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Town’s custody and issue an opinion on the public or exempt nature of the records. 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. Mass. 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. Order Accordingly, the Town is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay.

Taylor D. White SPR25/3133 Page 7 November 7, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Dan Riley