Jesko, Jackie v. Boston, City of - Public Records (SPR 20260643)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2026 SPR26/0643 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 Jackie Jesko, of Latchkey Films, 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 February 4, 2026, Ms. Jesko requested the following: [1] … a copy of any internal review of [an identified individual’s] case as conducted by BPS. We understand this investigation was conducted by the enrollment and the IT offices and was already redacted for (real) student names. This report was compiled between July-August 2023. [2] … a copy of the surveillance video taken of [identified individuals] entering the English School to discuss their “daughter” [an identified individual], and any other surveillance video of [an identified individuals] that may exist from any of the 3 schools [an identified individual] “attended” in the 2022-2023 school year. The City responded on February 25, 2026, and assigned reference number R000593- 020426 to the request. Unsatisfied with the City’s response, Ms. Jesko petitioned this office and this appeal, SPR26/0643, 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). 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 SPR26/0643 Page 2 March 12, 2026 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 City’s February 25th Response In its February 25, 2026 response, the City cited the Family Educational Rights and Privacy Act (FERPA), as it operates through Exemption (a) of the Public Records Law, to withhold records responsive to Item 1 of the request. See G. L. c. 4, § 7(26)(a). Additionally, with regard to Item 2 of the request, the City advised that no records exist. Current Appeal In her appeal, Ms. Jesko contends the following: [1] The true subject of the records was not a legitimate student under FERPA. The case against [an identified individual] in Suffolk County makes clear that the individual at issue was an adult woman falsely representing herself as a student… FERPA protects the privacy of actual student education records. [2] Redaction is feasible and required where appropriate. The Massachusetts Supreme Judicial Court in Champa v. Weston Public Schools requires that non- exempt portions of documents be produced with redactions where necessary to protect genuinely confidential information. The City’s conclusory statement that redaction is not possible, without specific explanation of why segregable information cannot be released, is insufficient as a matter of law. [3] If no responsive surveillance footage exists, a certification is appropriate. The City’s denial states that surveillance footage is routinely deleted after 30 days and that no records remain. If no footage exists, I request written certification of the applicable retention and deletion policy, and an explanation of whether any preservation hold or litigation hold was ever in place.

Grace Jung SPR26/0643 Page 3 March 12, 2026 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) In its response, the City referenced the Family Educational Rights and Privacy Act (FERPA) as applicable to withhold 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

Grace Jung SPR26/0643 Page 4 March 12, 2026 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. In its response, the City recited the definition of “personally identifiable information” under FERPA and stated, “[t]hey directly relate to a student(s) as you are seeking an “internal review of the [an identified individual’s] case as conducted by BPS.” Therefore, these records classify as educational records in accordance with FERPA. Although the matter concerning [an identified individual] has concluded, [an identified individual’s] records remain in BPS’s custody. Accordingly, this information must be treated as a part of a student’s record and maintained in compliance with laws and policies governing student records.” The City further stated the following: The issue is whether the requested student related review may be redacted in a manner that would sufficiently de-identify them and protect the privacy of the identified students. BPS finds that, unlike in Champa, these records are not eligible for redaction. In Champa, a requester sought copies of settlement agreements for students in need of special education services. Much of these agreements contained standard contract language and therefore redaction was deemed possible by the Supreme Judicial Court. Id. At 89. Unlike the records requested in Champa, the records you seek contain detailed and specific identifying information. The Champa Court notes that “personally identifiable information” is “not limited” to mere names or addresses. Id. at 93. It also applies to “other information,” “that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.” Id. at 93 referencing 34 C.F.R. ss. 99.3, 99.31(b)(1). Therefore, the records you seek are withheld, as they are exempt pursuant to FERPA as it operates under exemption (a) of the public records law. Unlike in Champa, redaction is not possible as the content of the responsive records consist of information that can identify an individual student. Disclosure would violate FERPA, as the records could not be redacted in a manner to protect disclosure under the reasonable person standard identified above.

Grace Jung SPR26/0643 Page 5 March 12, 2026 In Camera Inspection – Item 1 In order to facilitate a determination as to the applicability of the City’s claims to withhold records responsive to Item 1 under Exemption (a) of the Public Records Law, the City must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4). 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. Massachusetts 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. Item 2 In its response, the City stated, “[b]ased on City of Boston surveillance policies, surveillance video is generally automatically deleted or overwritten after 30 days, therefore, BPS finds that there are no responsive records for this request.” Based on the City’s response, I find that the City must demonstrate whether it followed proper records retention protocol with regard to the request for the surveillance video. The City must clarify this matter. Order Accordingly, the City is ordered to provide this office with an un-redacted copy of the records responsive to Item 1 of the request for in camera inspection without delay.

Grace Jung SPR26/0643 Page 6 March 12, 2026 Further, the City is ordered to provide Ms. Jesko with a response to Item 2 of 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. Jesko may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 2.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jackie Jesko