D'Ambrosio, Patricia v. Andover, Town of - Public Schools (SPR 20261149)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2026 SPR26/1149 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 Appeals This request was the subject of previous appeals. See SPR26/0320 Determination of the Supervisor of Records (February 11, 2026) and SPR26/0672 Determination of the Supervisor of Records (March 9, 2026). In my March 9th determination, I ordered the School to provide this office with un-redacted copies of the responsive records for in camera review. The School responded on March 19, 2026 and provided sample versions of responsive records. I would like to thank the School for its cooperation. Unsatisfied with the School’s response, Ms. D’Ambrosio petitioned this office and this appeal, SPR26/1149, 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 SPR26/1149 Page 2 April 8, 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 March 19th Response In its March 19, 2026 response, the School continued to cite the Family Educational Rights and Privacy Act (FERPA), as it operates through Exemption (a) of the Public Records Law, to withhold the responsive records. In addition, the School provided “(1) a blank, sample IEP document; and (2) a sample/fictional IEP created for special education trainings” to show what the responsive documents look like. Current Appeal In her appeal petition, Ms. D’Ambrosio argued, “[t]hese documents are not responsive to the order issued by your department nor do they address our concerns.” 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 SPR26/1149 Page 3 April 8, 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 argued: Both the Federal IDEA and the Massachusetts special education law, G. L. c. 71B, contain provisions protecting the confidentiality of the educational records of students with disabilities who receive special education services. The IDEA adopts the confidentiality standards in FERPA and incorporates FERPA’s definition of “education records,” see 20 U.S.C. § 1417(c), but its implementing regulations introduce additional procedural protections to safeguard the confidentiality of personally identifiable information for students with disabilities… and G. L. c. 71B, § 3, unlike G. L. c. 71, § 34D, contains explicit

Nicole L. Kieser SPR26/1149 Page 4 April 8, 2026 provisions about confidentiality of information concerning students with disabilities… IEPs, in their entirety, constitute educational records of students with disabilities who receive special education services. Moreover, 34 CFR § 99.31 and 603 CMR 23.07(4) address access to student record information and conditions under which student record information may be disclosed without prior consent. A thorough review of the regulations makes it clear that there are no bases by which the District can produce unredacted copies of the responsive records… In this case, the need to withhold the student IEPs is amplified by the fact disclosure of the number of students in these particular classes with IEPs can lead the requestor to identify which students in those classes have IEPs… In this case, it is understood that the requestor is looking to specifically identify the students who are on IEPs in these classes in order to compare them with her child. To this end, if the District provided fully redacted copies of the IEPs of other students, it would cause the requestor to investigate exactly which students in those classes have those IEPs. The students in these classes deserve privacy in regard to their eligibility for special education services. Based on the School’s response, in conjunction with a review of the sample records provided to this office and to Ms. D’Ambrosio, I find that the School has met its burden to demonstrate that the records are the type contemplated under FERPA and 34 C.F.R. § 99.3. Accordingly, the School may properly withhold the records under Exemption (a) of the Public Records Law. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. D’Ambrosio is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Patricia D’Ambrosio