D’Ambrosio, Patricia v. Andover, Town of - Public Schools (SPR 20260320)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 11, 2026 SPR26/0320 Nicole L. Kieser Records Access Officer Andover Public Schools 30 Whittier Court Andover, MA 01810 Dear Ms. Kieser: I have received the petition of Patricia D’Ambrosio appealing the response of the Andover 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 January 10, 2026, Ms. D’Ambrosio requested, “[t]o the above [identified request], which the District has not addressed kindly – under the public records law: add all of the IEPs of each student, redacted, who is in tenth grade ELA and Social Studies taught by [two identified individuals] along with IA and Sped teacher.” The School responded on January 27, 2026. Unsatisfied with the School’s response, Ms. D’Ambrosio petitioned this office and this appeal, SPR26/0320, 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

Nicole L. Kieser SPR26/0320 Page 2 February 11, 2026 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 January 27th Response In its January 27, 2026 response, the School referenced the Family Educational Rights and Privacy Act (FERPA), as it operates through Exemption (a), as well as Exemption (c) of the Public Records Law, to withhold the responsive records. Current Appeal In her appeal petition, Ms. D’Ambrosio stated, “[e]ven the BSEA has ruled against Andover on some of these records. Please order the District to immediately release same.” 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). 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 School referenced the Family Educational Rights and Privacy Act (FERPA) as applicable to withhold the requested records.

Nicole L. Kieser SPR26/0320 Page 3 February 11, 2026 “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 School recited the FERPA definition of “personally identifiable information,” and stated “[c]onfidential student information… The District has no authorization to release this information to you.” Based on the School’s response, it is unclear how all of the responsive records constitute “education records,” or how the records consist of “personally identifiable information” as defined under FERPA. The School must clarify this. The School is advised that, under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See 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. Accordingly, the School’s response did not contain the specificity required in a denial of access to public records Additionally, it is unclear how the records may be withheld in their entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The School must clarify these matters.

Nicole L. Kieser SPR26/0320 Page 4 February 11, 2026 Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). First Clause – Medical Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). Second Clause – Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The

Nicole L. Kieser SPR26/0320 Page 5 February 11, 2026 public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under Exemption (c), the School stated: The documents contain information and other materials/data relating to a specifically named individual, the disclosure of which constitute an unwarranted invasion of personal privacy. Exemption (c) requires a balancing test: where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield… Here, the public interest does not substantially outweigh the seriousness of the invasion of privacy addressed below. There is no public interest in a minor student’s specific special education services or individualized education program (“IEP”). Any further disclosures would constitute an unwarranted invasion of privacy… Here, the PETA balancing test results in a finding that disclosing these categories of information would constitute an unwarranted invasion of privacy. As to the first element, disclosure of information concerning access to special education services would result in personal embarrassment to an individual of normal sensibilities… As to the second element, the materials contain intimate details of a highly personal nature. It is well-settled that such intimate details include medical conditions which give rise to special education services… As to the third element, the same information would not be available from other sources. To the extent that the responsive records contain medical information of a specifically identified individual, I find that the School may properly withhold such portions under Exemption (c). Further, although portions of the records may fall within the privacy clause of Exemption (c), the School has not established how the responsive records may be withheld in their entirety. Here, the School has not sufficiently demonstrated that the records, in their entirety, contain intimate details of a highly personal nature, nor that disclosure thereof would result in personal embarrassment to an individual of normal sensibilities. In addition, although the School states that the same information would not be available from other sources, the School must also provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 292. Further, the School did not identify the records in its possession that it intends to withhold from disclosure. To deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The School must clarify these matters.

Nicole L. Kieser SPR26/0320 Page 6 February 11, 2026 Conclusion Accordingly, the School is ordered to provide Ms. D’Ambrosio 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. D’Ambrosio 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: Patricia D’Ambrosio