DaSilva, Ana v. Dartmouth, Town of - Public Schools (SPR 20260309)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 11, 2026 SPR26/0309 Kathleen Genthner Records Access Officer Dartmouth Public Schools 8 Bush Street Dartmouth, MA 02748 Dear Ms. Genthner: I have received the petition of Ana DaSilva appealing the response of the Dartmouth Public Schools (School/DPS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 15, 2026, Ms. DaSilva requested: …records related to my son, . . . and the development and revision of his IEP following the December 5, 2025 Team meeting: [1] Internal communications (emails, messages, memos, Teams/Google Chat messages, or other written communications) Between or among any of the following individuals regarding Daniel’s IEP, proposed edits, parent corrections, or decisions about supports: [a] [Six identified individuals] [b] Any DHS guidance, special education, or administrative staff involved in drafting, editing, or approving the IEP Date range: December 5, 2025 through January 9, 2026. [2] All drafts of [an identified individual]’s IEP Created, edited, circulated, or reviewed during this same period. [3] Any notes, directives, or internal comments Related to decisions about the following parent‑requested supports: [a] trusted‑adult access [b] guided notes [c] academic support across subjects [d] AI tools [e] structured check‑ins 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

Kathleen Genthner SPR26/0309 Page 2 February 11, 2026 [f] any other parent‑requested supports discussed at the December 5 meeting or submitted in writing on December 15 [4] Internal communications referencing the parent’s written corrections Submitted in writing on December 15 [5] Internal communications referencing the decision to reject, modify, or partially accept parent‑requested supports. The School responded on January 29, 2026. Unsatisfied with the School’s response, Ms. DaSilva petitioned this office and this appeal, SPR26/0309, 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 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. DaSilva’s status shall have no bearing on the public status of any existing responsive records.

Kathleen Genthner SPR26/0309 Page 3 February 11, 2026 Current Appeal In her appeal petition, Ms. DaSilva contends: My request sought internal communications, drafts, notes, directives, and staff deliberations related to the development and revision of [an identified individual’s] IEP. These are district process records, not the student record itself. … Even when a record contains personally identifiable student information, the Public Records Law requires agencies to segregate non‑exempt portions and produce them with redactions. … DPS asserts that producing these records “would violate state and federal student records law.” This is incorrect. FERPA restricts disclosure of personally identifiable student information, not staff deliberations or administrative decision‑making. The School’s January 29th Response On January 29, 2026, the School states that it has withheld certain records pursuant to Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). The School cited the Family Educational Rights and Privacy Act (FERPA) as the basis for withholding the requested records. 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.”

Kathleen Genthner SPR26/0309 Page 4 February 11, 2026 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 School referenced the Family Educational Rights and Privacy Act (FERPA) as applicable to withhold the requested records or information. “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. When citing FERPA in its response, the School states: Please be advised that the records requested cannot be provided in response to the Request, as they are exempt from disclosure under the Public Records Law pursuant to exemption (a) of the Law, which exempts records which are “specifically or by necessary implication exempted from disclosure by statute.” In this case, the records responsive to the Request would be considered “student records” under state student records law, and/or “education records” under federal student records law (M.G.L. c. 71, § 34D; 603 CMR § 23.00; 10 U .S.C. § 1232g;

Kathleen Genthner SPR26/0309 Page 5 February 11, 2026 34 C.F.R. Part 99) and thus are exempt from disclosure under the Public Records Law. You have the right as a parent to inspect or receive a copy of student records of your child pursuant to state and federal student records law, rather than the Public Records Law. You may request to inspect or receive a copy of your child’s student record by contacting your child’s school directly. It is necessary that DPS maintains a clear distinction between Public Records Requests and parental requests for student records, as DPS’s response to a Public Records Request, including any records produced with the response, become public records themselves. DPS would be in violation of state and federal student records law if it were to produce student records in response to a Public Records Request. regardless of the requester. FERPA provides a mechanism which allows for the public disclosure of information from education records when information classified as personally identifiable information is removed. As indicated above, under 34 C.F.R. 99.3 personally identifiable information includes, but is not limited to, student’s name; name of the student’s parents or other family member; address of the student or student’s family; a personal identifier, such as the student’s social security number, student number, or biometric record; 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 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. Based on the School’s response, it is unclear what information has been withheld, and how the withheld information constitutes the type of information described in the above statutes or regulations. In addition, the School did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (a). To deny access to a record under the Public Records Law, a records access officer must identify the records, categories of records, or portions of the records it intends to withhold. Further, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The School must clarify these matters. Greater Right of Access to the Records Where the statutes list authorized persons that may have access to the responsive records, Ms. DaSilva may have a right of access to the responsive records outside the Public Records Law. This office encourages Ms. DaSilva and the School to communicate directly to determine if there is another means affording Ms. DaSilva a greater right of access to the responsive records.

Kathleen Genthner SPR26/0309 Page 6 February 11, 2026 Conclusion Accordingly, the School is ordered to provide Ms. DaSilva 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. DaSilva may further 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: Ana DaSilva