Kose, Koray v. Arlington, Town of - Public Schools (SPR 20260785)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 18, 2026 SPR26/0785 Robert M. Spiegel Director of Human Resources Arlington Public School District 869 Massachusetts Avenue Arlington, MA 02476 Dear Mr. Spiegel: I have received the petition of Koray Köse appealing the response of the Arlington Public School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 12, 2026, Mr. Köse requested, “all internal communications (including but not limited to emails, memos, notes, meeting minutes, text messages if maintained in district systems, and any other records) that mention [an identified individual] or [two identified individuals]. This includes any references by name, email address (. . .), phone number (. . .), or other identifying information related to [an identified individual] or [an identified individual] in the District…” The District provided responses on February 27, 2026, March 2, 2026, and March 3, 2026. Unsatisfied with the responses, Mr. Köse petitioned this office and this appeal, SPR26/0785, was opened as a result. Status of the Requestor Please note that the reason for which the 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, Mr. Köse’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Robert M. Spiegel SPR26/0785 Page 2 March 18, 2026 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. The District’s February 27th, March 2nd, and March 3rd Responses In its February 27, 2026 response, the District provided some responsive emails, cited attorney-client privilege to withhold some responsive emails and stated, “…communications that refer to [an identified individual] would be considered student records, rather than public records. This letter serves as the District’s response to your request. I am attaching emails that are responsive to your request.” In its March 2, 2026 response, the District cited Exemption (d) of the Public Records Law to withhold responsive emails. See G. L. c. 4, § 7(26)(d). In its March 3, 2026 response, the District cited the Massachusetts Student Records Regulations and the Family Educational Rights and Privacy Act (FERPA) as they operate through Exemption (a) of the Public Records Law to withhold responsive records. See G. L. c. 4, § 7(26)(a). Current Appeal In his March 4, 2026 appeal, Mr. Köse stated, “…[t]he District’s repeated blanket assertions of privilege and its refusal to provide sufficient detail have prevented meaningful review of its claims and have frustrated the transparency required under Massachusetts law…”

Robert M. Spiegel SPR26/0785 Page 3 March 18, 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) “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

Robert M. Spiegel SPR26/0785 Page 4 March 18, 2026 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). Under FERPA, the District states, “[t]o clarify, based on your request for records pertaining specifically to [an identified individual], the District’s response is governed by the Massachusetts Student Records Regulations and the federal Family Educational Rights and Privacy Act (FERPA). Records reflecting confidential communications between District staff and legal counsel that are maintained in connection with a student remain protected from disclosure…” Based on the District’s response, it is unclear how the responsive records can be withheld in their entirety under FERPA, as it operates through Exemption (a). Specifically, it is unclear how the responsive records constitute “education records” or contain personally identifiable information as defined by FERPA. The District must clarify these matters.

Robert M. Spiegel SPR26/0785 Page 5 March 18, 2026 Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based. G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. Under Exemption (d), the District argues, “[t]o clarify, records were withheld pursuant to Exemption (d) of the Massachusetts Public Records Law, M.G.L. c. 4, § 7, cl. 26(d), which protects materials subject to the attorney-client privilege and/or attorney work product doctrine. The withheld records consist of confidential communications between District officials and legal counsel made for the purpose of seeking or providing legal advice. Disclosure of those communications would waive the privilege and is not required under the Public Records Law. To the extent non-privileged, responsive records exist, those have been produced.” Based on the District’s responses, I find it is unclear how the responsive records constitutes the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 447. Further, the District has not met its burden to show that the responsive records is not factual in nature, nor reasonably completed, nor that the records are interwoven with opinions or analysis leading to opinions. See DaRosa, at 448. Any information contained in the responsive record that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions

Robert M. Spiegel SPR26/0785 Page 6 March 18, 2026 are narrowly construed and are not blanket in nature). The District must clarify these matters. Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007 (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the ground upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Under the attorney-client privilege, the District states, “[a]ny emails not included in this response are subject to attorney-client privilege.” Although the District indicates that it is withholding responsive records pursuant to the attorney-client privilege, the District must provide a detailed description of the record(s) withheld, including the names of the author and recipients, the date, the substance of such record(s), and the grounds upon which the attorney-client privilege is being claimed in accordance with G. L. c. 66, § 10A(a). The District must also clarify whether all of the communications withheld under the attorney-client privilege were between a client and an attorney during the course of the client’s search for legal advice from the attorney in his or her capacity as such. Further, the District must also provide information regarding whether the communications were made in confidence and demonstrate that the privilege has not been waived. Conclusion Accordingly, the District is ordered to provide Mr. Köse 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. Köse may appeal the substantive nature of the District’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Robert M. Spiegel SPR26/0785 Page 7 March 18, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Koray Köse