DaSilva, Ana v. Dartmouth, Town of - Public Schools (SPR 20260838)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2026 SPR26/0838 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 [an identified individual] … 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 [a named individual’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 SPR26/0838 Page 2 March 20, 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. Previous Appeal The requested records were the subject of a previous appeal. See SPR26/0309 Determination of the Supervisor of Records (February 11, 2026). In my February 11th determination, I ordered the School to clarify how the requested records may be properly withheld, and identify which records it is withholding. The School responded on February 13, 2026, February 21, 2026, and March 5, 2026. Unsatisfied with the School’s responses, Ms. DaSilva petitioned this office and this appeal, SPR26/0838, was opened as a result. 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. 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.

Kathleen Genthner SPR26/0838 Page 3 March 20, 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. Current Appeal In her appeal petition, Ms. DaSilva contends: …the district repeated the same blanket exemption asserted in its January 29 response and did not provide the clarification required. Additionally, the district’s March 2, 2026 FERPA response directly contradicts the district’s January 29 PRR denial and its March 5 supplemental response. In the FERPA response, DPS stated that no drafts, no internal notes, no electronic communications, and no documents related to the development or revision of the IEP exist. These statements conflict with the district’s PRR position that all such records exist but are exempt as student records. … The March 5 supplemental response also does not address the required separation of non‑exempt material, does not analyze the categories individually, and does not clarify the basis for withholding beyond repeating the same exemption. … The School’s February 13th, February 21st, and March 5th Responses On February 13, 2026, the School provided records responsive to Ms. DaSilva’s request. On February 21, 2026, the School provided an additional responsive record and stated: [1] [A]ll IEP drafts - No IEP drafts exist. A draft is created and then sent to the parents once finalized, you have all the copies of those finalized IEPs. [2] [A]ny notes, summaries, or documents related to the December 5, 2025 Team meeting - The only notes from that meeting are included in the N1 which has been provided. [3] [A]ny documents created after December 5 related to the development or revision of the IEP - None exist, the only document referenced was the response that you sent to the IEP proposal. [4] [I]nternal notes or working files maintained by any staff member that meet the definition of a student record - None exist [5] [C]ounseling or guidance notes shared beyond the individual counselor - None exist [6] [D]iscipline, attendance, and health/nurse records - [an identified individual] has no discipline records. I attached his attendance records to this email dating back to 2023. Health records have been sent. [7] [A]ll electronic records, including emails, digital notes, and SIS entries - No

Kathleen Genthner SPR26/0838 Page 4 March 20, 2026 emails or electronic communication exist that would be considered part of [an identified individual]’s student record. [8] [T]he access log required under 603 CMR 23.07(4) - Attached to this email. It is blank as these records are kept in the Student Services office and no one has accessed it outside of admin and admin assistants in the office. [9] [A]ny other materials that meet the definition of “student record” under 603 CMR 23.02 On March 5, 2026, the School stated that it 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.” 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:

Kathleen Genthner SPR26/0838 Page 5 March 20, 2026 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: Where the Request specifically asked for “records related to [an identified individual]... and the development and revision of his IEP,” all responsive records thus meet the definition of “Education Records” under FERPA. … Because the Request specifically identifies the student to which all of the requested records relate, any records produced by DPS in response to the Request, even if the student’s name and other direct identifying information was redacted, would still be “linkable” to the specific student such that it would permit a reasonable person in the school community to “identify the student with reasonable certainty.” As a result, even redacted records, in the context of DPS’s response to the Request which identifies the student, would be considered Personally Identifiable Information under subsection (f) of that term’s definition. In addition, any responsive records - even if redacted - would also be considered Personally Identifiable Information under subsection (g) of the definition set forth above, since the records are “requested by a person who [DPS] reasonable believes knows the identify of the student to whom the education record relates.” 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,

Kathleen Genthner SPR26/0838 Page 6 March 20, 2026 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 which specific records the School intends to withhold. The School must identify the records, categories of records, or portions of records it intends to withhold or redact under FERPA as it operates through Exemption (a) of the Public Records Law. 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”). 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. 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