Champa v. Weston Public Schools

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SJC-11838

MICHAEL CHAMPA vs. WESTON PUBLIC SCHOOLS & others.1

Middlesex. September 9, 2015. - October 23, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,

& Hines, JJ.

Public Records. Municipal Corporations, Public record. School

and School Committee, Public record, Special education.

Education, Special educational needs. Individuals With

Disabilities Education Act. Family Educational Rights and

Privacy Act. Privacy. Contract, Settlement agreement.

Civil action commenced in the Superior Court Department on

November 14, 2012.

The case was heard by Angel Kelley Brown, J., on motions

for judgment on the pleadings, and entry of final judgment was

ordered by her.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

Doris R. MacKenzie Ehrens for the defendants.

Peter F. Carr, II, for the plaintiff.

1

The superintendent of Weston Public Schools and the

director of student services of Weston Public Schools. We shall

refer to the defendants collectively as the "school district."

2

Mary Ellen Sowyrda, pro se, amicus curiae, was present but

did not argue.

The following submitted briefs for amici curiae:

Maura Healey, Attorney General, & Peter Sacks, State

Solicitor, for Department of Elementary and Secondary Education.

Stephen J. Finnegan for Massachusetts Association of School

Committees, Inc.

Amy M. Rogers, Catherine L. Lyons, & Melissa A. Curran for

Lyons & Rogers, LLC.

Robert E. McDonnell, Charles L. Solomont, Caitlin M.

Snydacker, Peter G. Byrne, Matthew R. Segal, & Jessie J. Rossman

for American Civil Liberties Union of Massachusetts.

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)

3

(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.2

Background.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

2

We acknowledge the amicus briefs submitted by the

Department of Elementary and Secondary Education; American Civil

Liberties Union of Massachusetts; Massachusetts Association of

School Committees, Inc.; Lyons & Rogers, LLC; and Attorney Mary

Ellen Sowyrda. We note that Attorney Sowyrda is a partner in

the law firm that represents the town in this case. She is the

head of the firm's special education group. In these

circumstances, her filing a separate brief, purportedly as an

amicus, to make further arguments supporting the client's

position, was ill-advised -- particularly as it appears from the

record that Attorney Sowyrda participated in drafting the

settlement agreement between the plaintiff and the town, and

also represented the town earlier in this matter before the

supervisor of public records. See Aspinall v. Philip Morris

Cos., 442 Mass. 381, 385 n.8 (2004) ("Briefs of amicus curiae

are intended to represent the views of nonparties; they are not

intended as vehicles for parties or their counsel to make

additional arguments beyond those that fit within the page

constraints of their briefs"). Cf. S.M. Shapiro, K.S. Geller,

T.S. Bishop, E.A. Hartnett, & D. Himmelfarb, Supreme Court

Practice § 13.14 (10th ed. 2013) (discussing disclosure

requirements of United States Supreme Court Rule 37.6;

suggesting that some amicus briefs deserve "a lesser degree of

credibility").

3

In the Superior Court, judgment entered on cross motions

for judgment on the pleadings. See Mass. R. Civ. P. 12 (c), 365

Mass. 754 (1974). We take the background facts from the

complaint and the answer.

4

disabilities4 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,[5] in which the

[school district] limited its contribution to education funding

or attached conditions for it for out of district placements"

4

The Commonwealth's special education law, G. L. c. 71B,

defines a "school age child with a disability" as "a school age

child in a public or non-public school setting who, because of a

disability consisting of a developmental delay or any

intellectual, sensory, neurological, emotional, communication,

physical, specific learning or health impairment or combination

thereof, is unable to progress effectively in regular education

and requires special education services . . . . The use of the

word disability in this section shall not be used to provide a

basis for labeling or stigmatizing the child or defining the

needs of the child and shall in no way limit the services,

programs, and integration opportunities provided to such child."

G. L. c. 71B, § 1.

5

The school district disputes that the settlement

agreements (agreements) are part of the individual education

program (IEP) process, but we have no need to resolve that

dispute in order to decide this case.

5

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.6

6

The agreements between the school district and families

are at the heart of the dispute in this case. The record in

front of the motion judge appeared to have contained what the

judge referred to in her written memorandum of decision as a

"sample settlement agreement," but the document she referenced

is not included in the record before us (at least under that

description). The record here does contain a copy of an

agreement between the school district and the plaintiff that

concerns the educational programming of the plaintiff's

daughter. This agreement contains the daughter's name and her

parents' names, and identifies the child as a child with special

education needs. Copies of IEPs prepared for the child are

referenced in the agreement and attached to it. The agreement

refers to the child's private school placement. Further, the

agreement discusses the financial terms governing the private

school placement and the child's transportation to and from that

school. Because the record only contains one agreement, we are

not in a position to generalize about the types of information

that the agreements may contain. In support of the school

district's motion to stay pending appeal, the school district

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, 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

submitted affidavits of the defendant superintendent and

director of student services. The affidavits aver that the

agreements are maintained by the school district as part of an

individual student's temporary education record, are kept in the

student's special education file, and indicate that an agreement

may contain information about a particular student's disability,

progress, and needs, including emotional disabilities so serious

that the student is not able to attend public school, and

information about the educational services a student will

receive. Given the undeveloped state of the record in relation

to the agreements, in reaching our decision on the present

appeal, we have accepted as accurate the general descriptions of

the contents of the agreements provided by these affidavits.

7

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

8

(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, 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

9

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.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.

7

The parties do not appear to have brought the Individuals

with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et

seq. (2012), or the Massachusetts special education law, G. L.

c. 71B, to the attention of the motion judge. In any event, the

judge did not mention these statutes in her memorandum of

decision.

10

i. FERPA. FERPA8 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, 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").

8

The statute known as the Family Education Rights and

Privacy Act (FERPA), 20 U.S.C. § 1232g (2012 & Supp. II 2014),

does not expressly prohibit disclosure of "education records,"

but it does condition receipt of Federal funds on the

nondisclosure of education records. This is sufficient, as a

practical matter, to satisfy the requirement that a statute

exempt data or information by "necessary implication." G. L.

c. 4, § 7, Twenty-sixth (a).

11

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."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

9

Further, the agreements do not fall within the list of

statutory exceptions to "education records" under FERPA. See 20

U.S.C. § 1232g(a)(4)(B).

12

'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 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

13

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.10

General Laws c. 71, § 34D, provides: "The board of education

10

The student records statute, G. L. c. 71, § 34D, does not

specifically address confidentiality of student records;

confidentiality is dealt with in the regulations promulgated by

the Department of Education (department) pursuant to § 34D. See

603 Code Mass. Regs. § 23.07 (2006). Exemption (a) refers

specifically to exemptions by "statute," and does not mention

regulations. The town and the plaintiff appear not to question

that exemption (a) may cover material that a regulation requires

to be treated as confidential, and more particularly, they

appear to agree that material that would constitute part of a

"student record" as defined in 603 Code Mass. Regs. §§ 23.02-

23.03 (2002) would fall within the scope of exemption (a).

Their disagreement is over the question whether the agreements

qualify as "student record[s]" under these regulations. As

discussed supra, we have concluded that exemption (a) applies in

this case because FERPA fits squarely within the scope of

exemption (a) and the agreements fit within the scope of FERPA's

definition of "education records." Because we interpret the

department's student record regulations to treat as confidential

the same types of information as FERPA does, we do not need to

decide in the present case whether the word "statute" in

exemption (a) should be interpreted to include "regulations" --

14

shall 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

generally, or at least in this instance. Rather, we assume,

without deciding, that the department's student record

regulations fit within the meaning of "statute" for purposes of

exemption (a).

15

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";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. § 23.02.12

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

11

The transcript "shall contain administrative records that

constitute the minimum data necessary to reflect the student's

educational progress and to operate the educational system.

These data shall be limited to the name, address, and phone

number of the student; his/her birth date; name, address, and

phone number of the parent or guardian; course titles, grades

(or the equivalent when grades are not applicable), course

credit, highest grade level completed, and the year completed."

603 Code Mass. Regs. § 23.02. Independent of this regulation,

the plaintiff appears to agree that insofar as the agreements

contain the student's name and the parents' or guardians' names,

this information should be redacted before the agreements are

disclosed.

12

The regulation further provides that "[s]uch information

may include standardized test results, class rank (when

applicable), extracurricular activities, and evaluations by

teachers, counselors, and other school staff." 603 Code Mass.

Regs. § 23.02. This is the language on which the motion judge

relied to conclude that the temporary record, and thus the

student record, pertains to a student's academic progress. Our

reading of the pertinent regulations as a whole, however,

persuades us that the "temporary record" has a broader scope

than purely a measurement of academic progress.

16

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.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

13

As mentioned, the applicability of the Federal IDEA and

G. L. c. 71B apparently was not raised as an issue before the

motion judge. See note 7, supra. We briefly consider the

statutes here because they appear to be directly relevant.

17

services. The IDEA adopts the confidentiality standards in

FERPA and incorporates FERPA's definition of "education

records," see 20 U.S.C. 1417(c),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

disabilities.15

Nothing in these statutes suggests that records relating to

students are confidential once all personally identifiable

14

"The Secretary shall take appropriate action, in

accordance with [FERPA], to ensure the protection of the

confidentiality of any personally identifiable data,

information, and records collected or maintained by the

Secretary and by State educational agencies and local

educational agencies pursuant to this subchapter." 20 U.S.C.

§ 1417(c). See 34 C.F.R. §§ 300.610, 300.611 (2006).

15

General Laws c. 71B, § 3, provides, in relevant part:

"The written record and clinical history from both the

evaluation provided by the school committee and independent

evaluation, if any, shall be made available to the parents,

guardians, or persons with custody of the child. Separate

instructions, limited to the information required for

adequate care of the child, shall be distributed only to

those persons directly concerned with the care of the

child. Otherwise said records shall be confidential."

Further, "[e]valuations and assessments of children and special

education programs shall remain confidential and be used solely

for the administration of special education in the

[C]ommonwealth."

18

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

19

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).

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,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

16

When it enacted G. L. c. 71B, in 1972, the Legislature

stated, "The General Court . . . finds that past methods of

labeling and defining the needs of children have had a

stigmatizing effect." St. 1972, c. 766, § 1. Currently, c. 71B

calls for a flexible definition of disability "so as to minimize

the possibility of stigmatization." G. L. c. 71B, § 2.

20

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 158.17 As is true with exemption (a), once the

17

The school district argues that the line item in its

budget that identifies the amount the district spends on out-of-

school placements is sufficient to serve the purpose for which

the plaintiff appears to want disclosure of the agreements, and

therefore public access to the agreements is not necessary.

This argument fails. The school district does not meet its

21

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.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

obligations with respect to the public records law by pointing

out that the requester may be able to obtain some of the

information from another source. Cf. Attorney Gen. v. Collector

of Lynn, 377 Mass. 151, 157 (1979) (tax delinquent records did

not fit within exemption [c] but were subject to disclosure as

public records; court noted, "the seriousness of any invasion of

privacy resulting from disclosure of the records of real estate

tax delinquents is reduced since substantially the same

information is available from other sources"). Cf. also Bougas

v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) (where

documents do not fit within one of public records law

exemptions, they are accessible by "'any person' whether

intimately involved with the subject matter of the records he

seeks or merely motivated by idle curiosity").

18

According to the affidavit of the superintendent filed in

support of the school district's motion to stay, all of the

agreements contain confidentiality provisions except the

agreement regarding the plaintiff's daughter.

22

requirements.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

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

19

This is not to say that every contractual agreement

between a municipality or other public agency and a private

party that contains a confidentiality clause is subject to

disclosure as a public record; one of the statutory exemptions

under G. L. c. 4, § 7, Twenty-sixth, may apply to the agreement.

23

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).20 The judgment of the

Superior Court is vacated, and the case is remanded for further

proceedings consistent with this opinion.

So ordered.

20

It would be appropriate for the school district to

propose redactions and, if there is a dispute, for the judge to

rule on the disputed redactions before the entry of judgment,

rather than through the vehicle of a postjudgment motion for

clarification.