Barbara Burgo v. Nantucket, Town of - Public Schools (SPR 20253331)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 25, 2025 SPR25/3331 Katie Bedell Executive Assistant to the Superintendent Nantucket Public Schools 10 Surfside Road Nantucket, MA 02554 Dear Ms. Bedell: I have received the petition of Barbara Burgo appealing the response of Nantucket 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 September 8, 2025, Ms. Burgo requested, “… specifically for the high school staff person to provide me with any reports for incidents of racial harassment including but not limited to: name calling, letter/notes writing, voice mails, texts, photos or otherwise bullying, including graffiti at the High School from 2018 to present.” The School responded on September 22, 2025, providing a redacted record. Unsatisfied with the School’s response, Ms. Burgo petitioned this office and this appeal, SPR25/3331, 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. 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

Katie Bedell SPR25/3331 Page 2 November 25, 2025 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 School’s September 22nd Response In its September 22, 2025 response, the School provided Ms. Burgo with a responsive record, redacted under Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). Current Appeal In her appeal petition, Ms. Burgo contends: First, the document you provided me and attached here NPS-20-2025 is almost totally redacted, full of black ink covering almost every word. I do understand the need for covering confidential information but I cannot understand why nearly every portion of this document is covered up? Also, this is only one (1) incident, it appears and I am appealing with the concern that there has been more than one incident over the past few years. 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

Katie Bedell SPR25/3331 Page 3 November 25, 2025 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 School referenced the Family Educational Rights and Privacy Act (FERPA) as applicable to redact 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; (f) 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 cites 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, 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.

Katie Bedell SPR25/3331 Page 4 November 25, 2025 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. 603 C.M.R. 23.07(4). In its September 22nd response, under the statutes and regulations cited above, the School states that “[t]he document contains information about students that would allow them to be identified and therefore falls within the definition set forth in 34 CFR § 99.3.” Based on the School’s response, it is unclear what information has been redacted from the responsive record, and how the redacted information constitutes personally identifiable information or education records as described in the statutes and regulations. The School must clarify this matter. Additional Records Further, based on the School’s response and the information provided in Ms. Burgo’s appeal petition, it is unclear if the School possesses additional records responsive to the request. Specifically, it is unclear whether the School possesses additional “reports for incidents of racial harassment … from 2018 to present.” 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the School must clarify whether additional records exist. Conclusion Accordingly, the School is ordered to provide Ms. Burgo 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. Burgo may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Katie Bedell SPR25/3331 Page 5 November 25, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Barbara Burgo