DaSilva, Ana v. Dartmouth, Town of - Public Schools (SPR 20261208)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 9, 2026 SPR26/1208 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) 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 SPR26/1208 Page 2 April 9, 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 Appeals This request was the subject of previous appeals. See SPR26/0309 Determination of the Supervisor of Records (February 11, 2026) and SPR26/0838 Determination of the Supervisor of Records (March 20, 2026). In my March 20th determination, I ordered the School to identify the records, categories of records, or portions of records it intends to withhold or redact under the Family Educational Rights and Privacy Act (FERPA) as it operates through Exemption (a) of the Public Records Law. The School responded on April 2, 2026. Unsatisfied with the School’s response, Ms. DaSilva petitioned this office and this appeal, SPR26/1208, 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). 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 April 2nd Response In its April 2, 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

Kathleen Genthner SPR26/1208 Page 3 April 9, 2026 withhold responsive records. In addition, the School responded to each item of the request as follows:  Item #1 of the Request, which asks for certain internal communications “regarding” an identified student’s IEP and other subjects, lacks sufficient specificity to require a response under the Public Records Law.  The District is not in possession of any records Responsive to Item #2 of the Request.  Item #3 of the Request, which asks for documents “related to” certain subjects, lacks sufficient specificity to require a response under the Public Records Law.  Item #4 of the Request, which asks for certain records “referencing” a particular subject, lacks sufficient specificity to require a response under the Public Records Law.  Item #5 of the Request, which asks for internal communications “referencing” a particular subject, lacks sufficient specificity to require a response under the Public Records Law. With regard to Items #1, 3, 4, and 5, the qualifying language used in these Items would require DPS personnel to make subjective judgments regarding whether a particular record is sufficiently related to the subject matter(s) identified… These items of the Request quite clearly fall short of the “reasonable description of the requested record(s)” required under 950 CMR 32.06(l)(b), and as such DPS has no obligation to respond to them… Current Appeal In her appeal petition, Ms. DaSilva argued that the School’s response is deficient for the following reasons: [1] DPS did not comply with the Determination’s requirement to identify records, categories, or portions withheld… [2] DPS mischaracterized the Determination… [3] DPS’s April 2nd response directly contradicts its own FERPA statements… [4] DPS introduced a new “lack of specificity” argument that conflicts with two prior Determinations… [5] DPS again failed to segregate and produce non-exempt portions… [6] DPS did not comply with the requirement to conduct a proper search… 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

Kathleen Genthner SPR26/1208 Page 4 April 9, 2026 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.” 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 cited 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.

Kathleen Genthner SPR26/1208 Page 5 April 9, 2026 34 C.F.R. § 99.3. Under Exemption (a), the School stated: DPS’s January 29 response asserted exemption (a) to withhold the requested records, on the basis that the records would be considered “student records” under state student records law, and/or “education records” under federal student records law… and thus are exempt from disclosure under the Public Records Law. In its March 5 response, DPS provided further clarification on the basis for the withholding of the requested records, describing in detail why the disclosure of any records in response to the Request would necessarily result in the disclosure of “Personally Identifiable Information,” under FERPA… DPS has provided you with access to all of the requested student records which are in its possession separately, through your access rights under FERPA as a parent… In response to the Determination’s directive for DPS to clarify the specific records or categories of records it intends to withhold under FERPA and Exemption (a), DPS hereby clarifies that all categories of records requested in the January 15, 2026 Request are subject to withholding under FERPA and Exemption (a), for the reasons set forth in the January 29 response and above. Reasonable Description of Records Sought Please be advised that in Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Superior Court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept. of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the

Kathleen Genthner SPR26/1208 Page 6 April 9, 2026 category of materials requested, will not satisfy this statutory standard.” As such, requests that seek “all records relating to…,” “all records concerning…,” or “all records regarding…” are not sufficiently particular as to satisfy the statutory standard of a request that “reasonably described the public record sought.” See G. L. c. 66, § 10(a)(i). Based on the School’s response, it is unclear whether the School possesses records responsive to the request. Although the School cites Exemption (a) and FERPA to withhold any records responsive to Items 1, 3, 4, and 5 of the request, the School also states that it has “provided… all of the requested student records which are in its possession separately” and that it “has no obligation to respond” to Items 1, 3, 4, and 5 due to a lack of specificity in describing the records sought. The School must clarify this. Consequently, to the extent the School is withholding responsive records under FERPA, it remains unclear which specific records the School intends to withhold. The School has not met its burden of specificity to identify the records, categories of records, or portions of records it intends to withhold 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”). To the extent the School is seeking clarification regarding the specific records sought in in Items 1, 3, 4, and 5 of the request, this office encourages Ms. DaSilva and the School to communicate to facilitate providing records more efficiently and affordably. Ms. DaSilva is encouraged to provide the School with any requested clarification. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Ms. DaSilva with a response to the request(s), 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 appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Kathleen Genthner SPR26/1208 Page 7 April 9, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Ana DaSilva