Kose, Koray v. Arlington, Town of - Public Schools (SPR 20261347)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 27, 2026 SPR26/1347 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, 2025, 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…” Previous Appeals This request was the subject of previous appeals. See SPR26/0785 Determination of the Supervisor of Records (March 18, 2026) and SPR26/1080 Determination of the Supervisor of Records (April 7, 2026). In my April 7th determination, I ordered the District to clarify how the records can be withheld in their entirety under the Family Educational Rights and Privacy Act (FERPA) as it operates through Exemption (a) of the Public Records Law. The District responded on April 10, 2026. Unsatisfied with the response, Mr. Köse petitioned this office and this appeal, SPR26/1347, was opened as a result. Subsequently, the District provided an additional response on April 13, 2026. 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 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 SPR26/1347 Page 2 April 27, 2026 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. 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. Current Appeal In his April 10, 2026 appeal, Mr. Köse stated, “…[i]n [the Supervisor’s] April 7, 2026 determination, [the Supervisor] explicitly required the District to clarify how Exemption (a), FERPA, and other asserted bases apply to the withheld records, and to meet its burden with specificity. Instead of doing so, the District has repeated the same conclusory assertions that [this] office has now rejected multiple times.…” The District’s April 10th and April 13th Responses In its April 10, 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). Additionally, the District withheld some records under attorney-client privilege. In its April 13, 2026 response, the District maintained its position to withhold the responsive records in their entirety under the Massachusetts Student Records Regulations and FERPA as they operate through Exemption (a) of the Public Records Law and attorney-client privilege.

Robert M. Spiegel SPR26/1347 Page 3 April 27, 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 SPR26/1347 Page 4 April 27, 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). In its April 10th response, under FERPA, the District argued the following: As explained in previous communications, the District clarifies that, to the extent your request seeks records that are directly related to an identifiable student, such records constitute “education records” under the Family Educational Rights and Privacy Act and “student records” under 603 CMR 23.00. Responsive internal communications that reference [identified individuals], in context, relate to an identifiable student and contain personally identifiable information, including the student’s name and other information that would allow a reasonable person to identify the student. Accordingly, such records are exempt from disclosure under the Public Records Law pursuant to M.G.L. ch. 4, §7(26)(a), as they are protected from disclosure my federal and state student records laws. As a parent, however, you have a right to access to your child’s education records under [FERPA]…and 603 CMR 23.00. The District has therefore treated your request, in part, as a request for access to student records because the records

Robert M. Spiegel SPR26/1347 Page 5 April 27, 2026 contain personally identifiable information, including your child’s name and/or other information that would allow a reasonable person to identify your child. Pursuant to FERPA and MA laws/regulations, the District has provided access to all responsive student records to which you are entitled on February 27, 2026. In its April 13th response, under FERPA, the District argued the following: As previously explained, it is important to note that at the outset, your request was submitted pursuant to the Massachusetts Public Records Law. As the Supervisor of Records has stated, access to records under the Public Records Law is determined without regard to the identity or status of the requestor. Accordingly, although you are the parent of the Student, the District must evaluate the requested records under the Public Records Law given your request and subsequent appeals. The remaining responsive records consist of internal communications among District staff that directly relate to your repeated requests, inquiries, and advocacy concerning your child, including requests regarding curriculum, opt-out requests, and related communications. These communications are organized around, and arise from, specific interactions concerning an identifiable student and family. As such, these records constitute “education records” under FERPA and “student records” under 603 CMR 23.02, as they contain information directly related to a student and are maintained by the District. In addition, the records contain personally identifiable information as defined by 34 C.F.R. § 99.3, including not only the student’s name and the parent’s name, but also contextual and substantive information that would allow a reasonable person in the school community to identify the student with reasonable certainty. The District has considered whether the responsive records can be redacted and produced in part. However, due to the nature of the request and the content of the communications, redaction would not sufficiently de-identify the student. The request itself is framed around [identified individuals], and the responsive records consist of internal discussions regarding your specific communications with the District. Even if direct identifiers (such as names or email addresses) were removed, the substance, context, timing, and subject matter of the communications—including references to specific requests, concerns, and interactions—would allow a reasonable person, including the requestor, to identify the student to whom the records relate. Based on the District’s April 10th and April 13th responses, and where the responsive records contain “personally identifiable information” about a student and the District has explained how segregable portions of the responsive records cannot be provided as the “contextual and substantive information. . .would allow a reasonable person in the school community to identify the student with reasonable certainty,” I find the District has met its

Robert M. Spiegel SPR26/1347 Page 6 April 27, 2026 burden to withhold the responsive records under FERPA as it operates through Exemption (a) of the Public Records Law. 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). In its April 10th response, under the attorney-client privilege, the District argued the following: As noted previously, the District withheld certain responsive records because they are subject to the attorney-client privilege and are therefore protected from disclosure. These records consist of confidential communications between District personnel and legal counsel during the 2025/2026 school year made for the purpose of seeking and/or providing legal advice regarding student-specific matters. To the extent such records reference a student, they may also implicate student records protected under federal and state law; however, they are withheld on the independent basis of attorney-client privilege. In its April 13th response, under the attorney-client privilege, the District argued the following: …A subset of the responsive records consists of confidential communications between District personnel and legal counsel made for the purpose of seeking and/or providing legal advice regarding the matters referenced above. These communications are independently protected from disclosure under the attorney- client privilege. To provide additional clarity, the District identifies the following category of privileged records:

Robert M. Spiegel SPR26/1347 Page 7 April 27, 2026  Communications between District administrators and legal counsel during the 2025/2026 school year regarding legal advice in response to your multiple requests, complaints, and related District actions concerning the student. These communications involve District personnel (including administrators) and legal counsel and concern the provision of legal advice regarding how the District should respond to your requests and related issues. Disclosure of these communications would reveal confidential legal advice, strategy, and attorney- client communications. Because these records are protected by the attorney-client privilege, they are exempt from disclosure on an independent basis. In this case, the District’s response did not contain the specificity required to withhold records pursuant to the attorney-client privilege. Based on the District’s April 10th and April 13th responses, it is unclear which specific records have been withheld pursuant to the privilege. Specifically, the District must provide an index comprised of a detailed description of each record withheld or redacted pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the District must clarify whether the privilege as to the communications has not been waived. See Suffolk, 449 Mass. at 450 n.9. 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). Sincerely, Manza Arthur Supervisor of Records cc: Koray Köse