MICHAEL CHAMPA vs. WESTON PUBLIC SCHOOLS & others. [Note 1]

BOTSFORD, J. In this case, the question presented is whether settlement agreements between a public school and the parents of a public school student who requires special education services are "public records" or exempt from disclosure. We conclude that the settlement agreements, regarding placement of students in out-of-district private educational institutions, are exempt from the definition of "public records" in G. L. c. 4, § 7, Twenty-sixth. The agreements qualify as "education records" under 20 U.S.C. § 1232g (2012 & Supp. II 2014), known as the Family Educational Rights and Privacy Act (FERPA), and as such, fit within exemption (a) of the definition of "public records," G. L. c. 4, § 7, Twenty-sixth (a) (exemption [a]). The settlement agreements also contain information that relates to specifically named individuals, the disclosure of which may qualify as an "unwarranted invasion of personal privacy," and therefore fit within exemption (c), G. L. c. 4, § 7, Twenty-sixth (c) (exemption [c]). We further conclude, however, that the settlement agreements may be redacted to remove personally identifiable information they contain, after which they become subject to disclosure under G. L. c. 66, § 10, the Massachusetts public records law. [Note 2]

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Background. [Note 3] The defendant Weston Public Schools (school district) is obligated to provide a free and appropriate public education to all students or school-age children with disabilities [Note 4] in accordance with G. L. c. 71B, § 1, and the Federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq. (2012). From time to time, the school district enters into settlement agreements (agreements) with parents of students with disabilities to resolve disputes over entitlement to public funding for specific services or out-of-district educational placements. On January 17, 2012, the plaintiff, Michael Champa, a resident of the school district, sent a public records request for, as is relevant here, "[c]opies of all agreements entered into by the [school district] with parents and guardians, as part of the [individualized education program (IEP)] process, [Note 5] in which the [school district] limited its contribution to education funding or attached conditions for it for out of district placements" for school years 2007-2012. The school district's interim director of student services responded to the plaintiff's request in a letter dated January 30, 2012, stating that the information was not a matter of public record and that "disclosure of the requested student records, in whole or in part, would constitute a violation of the Family Education Rights and Privacy Act (FERPA) and the Massachusetts [Student] Record Regulations." The plaintiff sought review by the supervisor of public records, who ruled that the records sought are exempt from disclosure. The plaintiff then commenced this action in the Superior Court, seeking a declaration that the agreements were public records as well as a permanent injunction ordering their disclosure. [Note 6]

On cross motions for judgment on the pleadings, a judge in the Superior Court (motion judge) allowed the plaintiff's motion and denied the school district's. The motion judge concluded that the agreements are "public records," not exempt under exemption (a), and although she recognized that certain portions of the agreements fell within the privacy exemption of exemption (c), she concluded that, with the name of the child and any description of the child's disability redacted, the agreements were subject to disclosure. The final judgment declared that the agreements were public records, were not "student records" under the Massachusetts student record regulations or "education records" under FERPA,

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and were not exempt from disclosure pursuant to exemption (a) or exemption (c). The school district was ordered to provide the plaintiff with a copy of all the agreements requested after the names of the students and any mention of disability were redacted, but further provided that the school district could apply to the court for clarification as to any other "unanticipated" personal information that arguably might disclose the identity of a particular student. The school district filed a notice of appeal.

Following the motion judge's decision allowing the plaintiff's motion for judgment on the pleadings, the school district filed a motion to stay pending appeal, supported by affidavits of the superintendent and the director of student services, which the motion judge allowed "[d]ue to the unique nature of this case and the significance of such disclosure." We transferred the case to this court on our own motion.

Discussion. 1. Standard of review. "We review de novo a judge's order allowing a motion for judgment on the pleadings under Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974)." Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 726 (2013). A motion for judgment on the pleadings tests the legal sufficiency of the complaint. Minaya v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904, 905 (1984). For the purposes of a rule 12 (c) motion, all of the well-pleaded factual allegations of the nonmoving party are assumed to be true. Id.

2. Public records law. General Laws c. 66, § 10, of the Massachusetts public records law (public records law) requires access to public records in the possession of public officials. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 430 (1983). "Public records" are broadly defined, and include all "documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the [C]ommonwealth, or of any political subdivision thereof." G. L. c. 4, § 7, Twenty-sixth.

Due to the broad scope of the public records law, in any court proceeding challenging the withholding of a requested document, "there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10 (c). The statute's unambiguous language mandates disclosure of requested records limited only by the definition of "public records" found in G. L. c. 4, § 7, Twenty-sixth. See DaRosa v. New Bedford, 471 Mass. 446,

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451 (2015). There is no dispute that as a general matter, the town's records, including the records of its schools, qualify as public records. The question is whether the agreements are excepted from classification as public records because they fit within one or more of the statute's exemptions and, in particular, exemption (a) or exemption (c), or both.

a. Exemption (a): exemption by statute. The definition of public records exempts materials or data that are "specifically or by necessary implication exempted from disclosure by statute." G. L. c. 4, § 7, Twenty-sixth (a). In Massachusetts, the disclosure of information about public school students is governed in part by FERPA, and the Massachusetts student records law, G. L. c. 71, § 34D, and its implementing regulations, 603 Code Mass. Regs. §§ 23.00 (2006). The disclosure of information regarding special education students such as the plaintiff's daughter is further governed by the IDEA, and the Massachusetts special education law, G. L. 71B. The motion judge concluded that the agreements did not qualify as "education records" under FERPA or as "student records" under 603 Code Mass. Regs. §§ 23.00, and therefore exemption (a) did not apply. [Note 7] The motion judge interpreted or defined both "education records" and "student records" as including only documents directly relating to a student's academic progress, and determined that the agreements do not fit within such a definition. We conclude that the definitions of these terms adopted by the judge were too narrow.

i. FERPA. FERPA [Note 8] defines "education records" as materials that "(i) contain information directly related to a student; and (ii) 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)(A). Neither FERPA nor its regulations limit the definition of "education records" to material relating to the student's academic progress. Under FERPA, the term "education records" has a broad scope. See United States v. Miami Univ., 91 F. Supp. 2d 1132,

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1149 (S.D. Ohio 2000) ("FERPA broadly defines 'education records'"); Belanger v. Nashua, N.H., Sch. Dist., 856 F. Supp. 40, 48 (D.N.H. 1994), aff'd, 294 F.3d 797 (6th Cir. 2002). See also Commonwealth v. Buccella, 434 Mass. 473, 491 (2001) (Marshall, C.J., concurring in part and dissenting in part), cert. denied, 534 U.S. 1079 (2002), quoting 5 J.A. Rapp, Education Law § 13.04[4][a] (2000) (education records under "broad mandate" of FERPA intended to cover all aspects of student's educational life that "relate to academic matters or status as a student").

The agreements at issue are "education records" under FERPA because they satisfy both elements of the statutory definition. There is no dispute that the agreements "contain information directly related to a student" -- no one disputes that they contain the name of the student (as well as those of the student's parents) -- and they "are maintained by an educational agency." [Note 9] In addition, the agreements may establish a student's school placement and they appear to define, at least in part, a student's educational programming, two matters that fall directly within the ambit of academic matters and status as a student. The school district maintains the agreements and keeps the documents in the individual student's special education file.

The fact that the agreements fall within the coverage of exemption (a) does not end the matter. The public records law specifically contemplates redaction of material that would be exempt, to enable the release of the remaining portions of a record. G. L. c. 66, § 10 (a) (requiring disclosure of "any segregable portion of a record"). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 288 n.15 (1979) ("The 1978 amendment [to G. L. c. 66, § 10 (a),] requires disclosure of . . . any portion that falls within the statutory definition of 'public record' after exempt portions have been deleted"). Through its implementing regulations, FERPA provides a mechanism that allows a school to disclose information from education records publicly after removal or "de-identifi[cation]" of all personally identifiable information: "[a]n educational agency or institution, or a party that has received education records or information from education records under this part, may release the records or information without the consent [of parents or eligible students] required by [34

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C.F.R.] § 99.30 after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student's identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information." 34 C.F.R. § 99.31(b)(1) (2012).

"Personally identifiable information," as used in FERPA, includes, but is not limited to, the student's name; the names of the student's parents or other family members; the address of the student or student's family; personal identifiers, such as the student's social security number; and indirect identifiers, such as the student's date of birth. 34 C.F.R. § 99.3 (2012). The definition also includes "[o]ther information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty," and "[i]nformation requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates." Id. The analysis to determine what redaction is necessary will be a case-by-case determination that considers the request, the school and the community, and the availability to the requester of other information that indirectly identifies the student. 34 C.F.R. §§ 99.3, 99.31(b)(1).

ii. Massachusetts student records law and regulations. [Note 10] General Laws c. 71, § 34D, provides: "The board of education shall

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adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the [C]ommonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or any other records concerning such pupil which are kept or are required to be kept." In compliance with the statutory directive, the Department of Education (department) has promulgated student record regulations, 603 Code Mass. Regs. §§ 23.00, directing that no third party shall have access to information in or from a student record without the consent of the eligible student or the parent. 603 Code Mass. Regs. § 23.07(4) (2006).

The regulations define "[s]tudent [r]ecord" as "the [t]ranscript and the [t]emporary [r]ecord, including all information . . . 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." 603 Code Mass. Regs. § 23.02 (2002). It is "limited to information relevant to the educational needs of the student." 603 Code Mass. Regs. § 23.03 (2002). We agree with the motion judge that the agreements do not fit within the regulation's definition of "transcript"; [Note 11] the issue is whether they are part of the student’s "temporary record." The temporary record includes all information in the student record not contained in the transcript and is generally defined as "information clearly . . . of importance to the educational process." 603 Code Mass. Regs. § 23.02. [Note 12]

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The record before us, limited as it is, indicates that an agreement is likely to contain information regarding a student's disability, progress, and needs -- information that is unquestionably of importance to the student's "educational process," see 603 Code Mass. Regs. § 23.02, and "educational needs." 603 Code Mass. Regs. § 23.03. The agreement, therefore, qualifies as part of the student's temporary record, and therefore as part of his or her "student record." However, like FERPA, the Massachusetts student records law and regulations protect student records only as they pertain to certain information -- not entire documents. See 603 Code Mass. Regs. §§ 23.02 (defining student record and temporary record as "all information . . . concerning a student"), § 23.07(4) (third parties shall not have access to "information in or from a student record" [emphasis added]). Accordingly, under the public records law, any "segregable portion" of the record must be disclosed, if with the redaction it independently is a public record. G. L. c. 66, § 10 (a).

iii. Special education law. [Note 13] The agreements by definition concern special education programs for the students to whom the agreements relate. 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), [Note 14] but its implementing regulations introduce additional procedural protections to safeguard the confidentiality of personally identifiable information for students with disabilities. See 34 C.F.R. §§ 300.561, 300.572, 300.573 (2002). And G. L. c. 71B, § 3, unlike G. L. c. 71, § 34D, contains explicit provisions about confidentiality of information concerning students with

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disabilities. [Note 15]

Nothing in these statutes suggests that records relating to students are confidential once all personally identifiable information is removed. Rather, what is confidential is certain information, again indicating that redaction of such information may render the particular document a public record that must be disclosed on request under the public records law.

b. Exemption (c): privacy exemption. The statutory definition of public records also exempts materials or data that are "personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." G. L. c. 4, § 7, Twenty-sixth (c). The inquiry under the privacy exemption "requires that the seriousness of any invasion of privacy be balanced against the public right to know." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). "Where the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield to the public interest" (citation omitted). Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979).

In identifying the existence of privacy interests, we consider, in part, whether disclosure would result in personal embarrassment to an individual of normal sensibilities, whether the materials sought contain intimate details of a highly personal nature, and whether the same information is available from other sources. Matter of a Subpoena Duces Tecum, 445 Mass. 685, 688 (2006), quoting Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. 852, 858 (1995). See, e.g., Collector of Lynn, 377 Mass. at 157 (public disclosure of lists of tax delinquents results in personal embarrassment, but disclosure does not amount to intimate details that are highly personal in nature; disclosure required).

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The agreements may contain information that amounts to an unwarranted invasion of the student's personal privacy. As previously discussed, the agreements may link the name of the individual student (and his or her family) to information about the services and programming the child will receive and information about the child's disability, progress, and needs. Further, the agreements are likely to identify the out-of-district school, which may indirectly identify the child's disability. This type of information is highly personal, and disclosure may result in embarrassment and potentially lead to stigma, [Note 16] bringing it within the scope of exemption (c).

Nonetheless, like exemption (a), exemption (c) does not cover, and thereby authorizes withholding, information that does not permit the identification of an individual. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. at 438. As with exemption (a), the pertinent inquiry is whether the deletion of particular identifying information from the documents sought places the documents outside the exemption. Id. In assessing whether the documents contain identifying information, the inquiry must be considered "not only from the viewpoint of the public, but also from the vantage of those who [are familiar with the individual]." Department of the Air Force v. Rose, 425 U.S. 352, 380 (1976). The agreements here, although they contain identifying information, also include information that does not appear to invade the reasonable privacy interests of students or their families. Notably, once personally identifiable information is redacted, the financial terms of such agreements, which necessarily reflect the use of public monies, partially or fully, to pay for out-of-district placements, do not constitute an unwarranted invasion of personal privacy; indeed, the public has a right to know the financial terms of these agreements. See Collector of Lynn, 377 Mass. at 158. [Note 17]

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As is true with exemption (a), once the appropriate redactions of personally identifiable information are made, the agreements will no longer fit within the scope of exemption (c) and must be disclosed.

c. Confidentiality clause. Finally, the school district contends that the inclusion of a confidentiality clause in each of the agreements (other than the plaintiff's agreement) further prohibits their disclosure. [Note 18] The school district is incorrect. Although the agreement may have served as a private settlement of a dispute between the school district and one of the families living in the school district, the fact that the school district and the family contractually agreed to keep the settlement private cannot, by itself, trump the public records law and the school district's obligation to comply with the law's requirements. [Note 19] Cf. Ackerly v. Ley, 420 F.2d 1336, 1339 n.3 (D.C. Cir. 1969) (discussing Federal Freedom of Information Act [FOIA], 5 U.S.C. § 552 [2012]: "It will obviously not be enough for the agency to assert simply that it received the file under a pledge of confidentiality to the one who supplied it. Undertakings of that nature can not, in and of themselves, override the [FOIA]"). Cf. also Hechler v. Casey, 175 W. Va. 434, 444 (1985) ("an agreement as to confidentiality between the public body and the supplier of the information may not override the [FOIA]. See Ackerly[, supra]").

Conclusion. The final judgment in this case was entered on cross motions for judgment on the pleadings. We have concluded that both exemption (a) and exemption (c) to the definition of public records in G. L. c. 4, § 7, Twenty-sixth, apply to the agreements, but that personally identifying information in the

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agreements is subject to redaction, and when the agreements are properly redacted, they must be disclosed. The facts are too undeveloped in the record before us to make a determination regarding the necessary and appropriate redactions of personally identifying information to be made; a remand of this case to the Superior Court is necessary to permit this to be accomplished. See Georgiou v. Commissioner of the Dep't of Indus. Accs., 67 Mass. App. Ct. 428, 437-438 (2006). [Note 20] The judgment of the Superior Court is vacated, and the case is remanded for further proceedings consistent with this opinion.

So ordered.