Special Education Settlement Agreements in the Public Eye
According to the Supreme Judicial Court, special education settlement agreements, even with a confidentiality clause included, may be obtained by the public via a Massachusetts public records request, if redacted of personally identifiable information.
In Champa v. Weston Public Schools, an individual sued a public school district that refused to produce five (5) years of special education settlement agreements in response to his public records request under the Massachusetts Public Records Law (“Public Records Law”).
The District argued that special education settlement agreements are part of a student record, and therefore, they are subject to the confidentiality provisions of both the Family Education Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g(a)(4)(A), and state special education regulations, 603 CMR 23.03, which in turn, qualifies them as exempt under the Public Records Law.
The Supreme Judicial Court (SJC) agreed with the District’s position that special education settlement agreements qualify as student records, as defined by federal and state law. The SJC also agreed with the District that exemptions to the Public Records Law apply to special education settlement agreements, namely: exemption (a), which includes information that is “specifically or by necessary implication exempted from disclosure by statute”; and exemption (c), which includes “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 privacy.” See M.G.L. c. 4, § 7.
The SJC’s agreement with the District stopped there. The Court ruled that these documents could be produced in a de-identified form. The crux of this decision lies in these words: “the public records law specifically contemplates redaction of material that would be exempt, to enable the release of the remaining portions of a record...” The Court concluded, “Accordingly, under the public records law, any ‘segregable portion’ of the records must be disclosed, if with the redaction it independently is a public record.”
Therefore, the SJC held, that by redacting all personally identifiable information from a special education settlement agreement, the end product is a public record that does not fall within a Public Records Law exemption, and that must be produced pursuant to a public records request. School districts and parents are on notice that, despite any agreed- upon confidentiality clause, a redacted version of their “private” settlement agreements may end up in the public eye.
Public Records Practice Tip
It is noteworthy that the Champa public records request was for out-of-district settlement agreements that the school district had executed over a five (5) year period. In contrast to this general request, any “targeted” public records request, seeking the settlement agreements of a small, specific group of students (i.e., a parent submits a public records request for the special education settlement agreements of students in his/her child’s classroom) should be subjected to scrutiny. Under these kinds of circumstances, the requestor knows the identity of the students to whom the records relate, and/or the information sought would make the student’s identity easily traceable to the requestor. With a “targeted” request, it may not always be possible to produce records, even redacted, without revealing personally identifiable information. As emphasized by the SJC in Champa, even the identification of an out of district school name could indirectly identify a child’s disability, the disclosure of which “may result in embarrassment and potentially lead to stigma.” School districts are encouraged to consult with legal counsel to determine, on a case-by-case basis, what qualifies as “personally identifiable information,” given who the requestor is in relation to the students, and what information is included in the records sought.