D'Ambrosio, Patricia v. Andover, Town of - Public Schools (SPR 20260672)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 9, 2026 SPR26/0672 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.” Previous Appeal This request was the subject of a previous appeal. See SPR26/0320 Determination of the Supervisor of Records (February 11, 2026). In my February 11th determination, I ordered the School to clarify its claims under Exemptions (a) and (c) of the Public Records Law to withhold the responsive records, and to identify the records in its possession that it intends to withhold from disclosure. The School responded on February 26, 2026. Unsatisfied with the School’s response, Ms. D’Ambrosio petitioned this office and this appeal, SPR26/0672, 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

Nicole L. Kieser SPR26/0672 Page 2 March 9, 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 School’s February 26th Response In its February 26, 2026 response, the School confirmed that it possesses responsive records which are being withheld under the Family Educational Rights and Privacy Act (FERPA), as it operates through Exemption (a), as well as Exemption (c) of the Public Records Law. Current Appeal In her appeal petition, Ms. D’Ambrosio stated, “I do not believe from your Dept’s filing and from the BSEA ruling against Andover on this same issue that the District is legally permitted to withhold appropriately redacted IEPs in accord with my request.” 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.”

Nicole L. Kieser SPR26/0672 Page 3 March 9, 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. “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: Both FERPA (20 U.S.C. § 1232g) and the IDEA (20 U.S.C. § 1400) require that prior consent be obtained before disclosing student record information to third parties, such as yourself. The District has no authorization from the parents/guardians of students whose IEPs you seek to release this information to you, even in redacted form. To this end, if a third party requested a copy of your [an identified individual’s] IEP, the District would not provide the document to them, even in redacted form.

Nicole L. Kieser SPR26/0672 Page 4 March 9, 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 SPR26/0672 Page 5 March 9, 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… Here, the public interest does not substantially outweigh the seriousness of the invasion of privacy... There is no public interest in a accessing a minor student’s specific special education services or individualized education program (“IEP”). While there may be public interest in IEP compliance, that is addressed by specific regulatory agencies to monitor and enforce. Any further disclosures would constitute an unwarranted invasion of privacy to the minor child… 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… Students whose access to special education services is shared publicly may be subject to ridicule from peers. The District has a significant interest in enforcing the provisions of M.G.L. c. 71, § 370, which finds that students are more vulnerable to bullying on the basis of a disability. 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… The documents contain medical information. As you are aware, students are deemed eligible for IEPs based on having a disability that entitles them to specialized instruction. An IEP, in its entirety: (1) describes a child’s disability; (2) explains examination results regarding a child’s disability; and (3) identifies and explains the reasoning for specialized instruction and supports to allow the child the make academic progress with their disability. In Camera Inspection In order to facilitate a determination as to the applicability of the School’s claims to withhold the responsive records pursuant to Exemptions (a) and (c) of the Public Records Law, the School must provide this office with un-redacted copies of the responsive records for in

Nicole L. Kieser SPR26/0672 Page 6 March 9, 2026 camera inspection. After I complete my review of the records, I will return them 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. Order Accordingly, the School is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Patricia D’Ambrosio