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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confidential material and may not be published without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.
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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
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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
[email protected]
cc: David Fleishman, Newton Public Schools SuperintendentMatt
Hills, Newton Public Schools School Committee Chair on behalf of
the School Committee