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Massa ch usetts Department ofElementary and Secon dary Education75 Pleasant Street. Malden. Massachuselts 02148-4906 Teleptrcne (781 ) 338-3000

TTY: N E.T Relay 1-800-439-2370

April23,201.4

Via first closs moil

,".Ilwrite to respond both to your email, originally received by the Massachusetts Department ofElementary and Secondary Education ("Department") on November 5, 2013, and your subsequentcorrespondence on March 3,20L4, in which you inquired about the Department's confidentialitypolicies and filed a complaint with the Department's Office of Program Quality Assurance's ("PQA")Problem Resolution System ("PRS"). As I understand the materials you have submitted, you seekwritten verification that according to Department policy, "as complainants in a IPQA] action...my name,my child's name, and our address, are confidential material and may not be published without specificwritten permission." I also understand that your PRS complaint alleges violations of the Department'sregulations on Student Records, 603 CMR 23.OO et seq., by School Committee members in the NewtonPublic Schools ("Newton"), who produced to the media a letter sent to you by the Department, whichpersonally identifies you ln what follows I will address both issues you have raised.

Neither the Department nor PQA has a blanket policy that requires staff to keep confidential theidentities of individuals who file PRS complaints ("complainants"). Instead, the Department preservesthe confidentiality of complainants as necessary and on a case by case basis by applying the PublicRecords Law, G.L. c. 66, 510; G.L. c. 4, 57(26), to the information described in each specific complaint.

Before responding to a public record request for records related to a specific PRS complaint, theDepartment revlews responsive records and redacts information that is exempt from the Public RecordsLaw according to G.L. c. 4, 57(26). Frequently, the Department redacts the identity of the student, thecomplainant, and associated contact information under the statutory exemption to the Public RecordsLaw, G.L. c. 4, S7(26Xa), which incorporates by reference the federal Family Education Rights Privacy Act(FERPA), 20 U.S.C. 7232(el; and/or according to the privacy exemption to the Public Records Law, G.L. c.4, 57(26)(c), which permits the redaction of "intimate details of a highly personal nature" as well asinformation for which the individual's right to privacy outweighs the public's right to disclosure.

Attornev General v. collector of Lvnn ,377 Mass.151, 156 (L979). other exemptions in the publicRecords Law may also apply depending on the specific details of individual complaints.

Although the policy described above is similar to the rules with which public school districts mustcomply; unlike the Department, public school districts must also comply with the Department,s studentrecordregulations,603cMR23.00etseq' Accordingtotheregulations,astudentrecordincludesthe"temporary record," the "transcript," and all information "that is organized on the basis of the student,sname or in a way that such student may be individually identified." 603 cMR 23.02. Except underexempt circumstances specifically described in the regulations, "no third party shall have access toinformation in or from a student record without the specific, informed written consent of the eligiblestudent or the parent.', 603 CMR 23.07(4).

Baseo cn the infcrrnation ycu heve subrnitied, tne Department has deter-rnlnec that the lrler,vtcn schcclcommittee has violated the Department's student record regulations by producing to the media,[r\-response to a public record request,) letter containing personaily identifiable information ubo;;t;''lstudent, which the Department senf to you on september 1-3, 20L3. The letter in question closed aninvestigation that followed from a PRS complaint that you filed with peA previously. Both ,i" ,0..,t JIetter in question, dated september 13, 2013, and the underlying pRS complaint related to allegationsinvolving a specific student, explicitly named in both the complaint and the closure letter, and theappropriateness of the curriculum tau8ht by Newton teachers to the student and the student,sclassmates' The closure letter, therefore, personally identifies, is organized, and involves an educationalmatter experienced by a specifically named student. Accordingly, it falls under the definition of"student record" in 603 CMR 23.02.

This student record was improperly disclosed to third parties. Because the closure letter is a ..studentrecord" it can oniy be disseminated with parentai consent or under specific circumstances described in603 cMR 23'07(a)-(h)' As described in the materiais submitted to the Department, a member of theNewton school committee produced this letter to the mediaftn ,"rponru to a public record request]and without parental consent. These circumstances meet no exception specified in the regulations andtherefore, lacl

To provide notice of the Department's findings and directive, I have sent a copy of this letter underseparate cover to the Newton Superintendent and the School Committee Chair. By May 30, 2014, theDepartment has required the Newton Superintendent and School Committee to provide writtenassurance that the required review has taken place. The Department will then follow up as necessary tomonitor compliance.

I hope you find this helpful. With questions, you can reach me by use of the contact information listedbelow.

Sincerely,

- i, w'-t- ''-- \Joshua Varon, Legal Counsel781-338-3400ivaron@doe.mass.edu

cc: David Fleishman, Newton Public Schools SuperintendentMatt Hills, Newton Public Schools School Committee Chair on behalf of the School Committee