Brian Foley v. Boston, City of - Public Records (SPR 20253611)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2025 SPR25/3611 Grace Jung Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Ms. Jung: I have received the petition of Brian Foley appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 19, 2025, Mr. Foley requested the following: [1] The number of students placed in K0, K1, & K2 at the Eliot School during the 24-25 school year which BPS assigned to students without these students going through the lottery system (i.e., there were 149 seats in K0-K2 for the 24-25 school year – the information I am looking for is how many of these 149 placements were assigned via the lottery system and how many were manually assigned via a BPS policy that allowed a student to override the lottery?). This shall be broken down via zip code[;] [2] [T]he zip code composition of the waiting list for K0, K1, & K2 at the Eliot School for the 24-25 school year (latest wait list available which I believe would have been Jan. 31, 2025)[;] [3] The student composition by zip code of the Warren Prescott School for the 24- 25 school year (latest wait list available which I believe would have been Jan 31, 2025)[;] [4] The zip code composition of the waiting list of K0, K1, & K2 for the Warren Prescott School for the 24-25 school year (latest wait list available which I believe would have been Jan 31, 2025)[;] [5] The student composition by zip code of the Harvard Kent school for K0, K1, & K2 for the 24-25 school year (same as what was provided to me on 8/18 for the Eliot School)[;] [6] The zip code composition of the waiting list for K0, K1, & K2 for the Harvard Kent School for the 24-25 school year (latest wait list available which I believe would have been Jan 31, 2025). 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

Grace Jung SPR25/3611 Page 2 December 19, 2025 Previous Appeals This request was the subject of a previous appeals. See SPR25/2822 Determination of the Supervisor of Records (October 3, 2025) and SPR25/3235 Determination of the Supervisor of Records (November 14, 2025). In my November 14th determination, I ordered the City to clarify whether it possessed additional responsive records. The City responded on December 5, 2025. Unsatisfied with the City’s response, Mr. Foley petitioned this office and this appeal, SPR25/3611, was opened as a result. Subsequently, the City provided an additional response on December 17, 2025. 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. Current Appeal In his December 8, 2025 appeal to this office, Mr. Foley stated, “[i]n response to your Order, BPS has acknowledged they have additional information; however, they are not releasing this information due to ‘privacy’ concerns…[p]roducing a singular zip code with the number of students from said zip code making up a school does not violate any individual rights of students. Nothing in a zip code can identify a student. The City of Boston zip codes have tens of thousands of people live in a single zip code... Zip codes do not identify any single students, and BPS’s practice has been to release this exact information in the past (and they’re even currently marketing such for other schools on their own website).” The City’s December 5th and December 17th Responses In its December 5, 2025 response, the City withheld records pursuant to the Family Educational Rights and Privacy Act (FERPA) as it operates through Exemption (a) of the Public

Grace Jung SPR25/3611 Page 3 December 19, 2025 Records Law. See G. L. c. 4, § 7(26)(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. 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: (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

Grace Jung SPR25/3611 Page 4 December 19, 2025 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. 603 C.M.R. 23.07(4) (emphasis in original). In its December 5th response, the City stated, “[f]ollowing the determination of SPR[25]/3235, the City re-reviewed the responsive document and Boston Public Schools’ policy regarding data. The policy states, ‘Aggregate groups that contain fewer than 10 students will be suppressed to protect privacy.’ Therefore, this record shows “<10” to preserve the privacy rights of BPS students in accordance with FERPA under exemption (a) of the Massachusetts Public Records Law.” In its December 17th response, the City stated, “[d]ue to an internal policy at the Boston Public Schools, the data is formatted as ‘<10’ in the record produced to Mr. Foley on November 3, 2025, for privacy reasons.”

Grace Jung SPR25/3611 Page 5 December 19, 2025 Burden of Specificity in Claiming Exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Based on the City’s responses, I find the City has not met its burden in responding to this request. Although the City cites FERPA, as it operates through Exemption (a), the City has not demonstrated how zip codes are “education records” or “personally identifiable information” under FERPA. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Mr. Foley 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. Mr. Foley 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: Brian Foley