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Saturday, March 5, 2016

Disclosure of Settlement Agreements

From Bill's Blog
via Mass. Advocates for Children

This is one of occasional postings on special education law and practice. This posting explores the relevance of a recent court decision requiring a school district to disclose settlement agreements to a parent, after removing personal identifying information.

The decision, issued on October 23, 2015, is Michael Champa v. Weston Public Schools, 473 Mass. 86 (2015). [1]


Bill Crane is Of Counsel to Massachusetts Advocates for Children. He works with other MAC attorneys on systemic special education issues, consults to attorneys representing low-income parents and students in special education disputes, and writes occasional postings for the MAC blog. He was a Hearing Officer at the Bureau of Special Education Appeals from 1999 to 2014.

By Bill Crane, Esq.
March 3, 2016

Background

The plaintiff in this case, Michael Champa, has identified himself as a parent of a special needs child and, at the time of the dispute, he resided in Weston. [2] Mr. Champa asked Weston to give him copies of all settlement agreements where Weston had “limited its contribution to education funding or attached conditions for it for out of district placements” for school years 2007-2012.

Weston refused, taking the position that the settlement agreements were confidential and could not be released to the public. Mr. Champa went to Superior Court, which ordered disclosure of the settlement agreements. Weston appealed. On appeal, the case went to the Supreme Judicial Court (SJC).

The Supreme Judicial Court’s Decision

The issue before the SJC was whether the settlement agreements requested by Mr. Champa are public records under the state public records law. [3] If they are public records, Mr. Champa would be entitled to obtain them from Weston. [4] Weston sought to persuade the Court that since settlement agreements contain information about individual students, they are confidential and should be exempt from what is considered a public record.

Weston’s argument was supported by a number of federal and state laws that protect the confidentiality of student records. For example, Weston argued that a settlement agreement is an “educational record” as that term is defined within the federal Family Education Rights and Privacy Act (FERPA) because all settlement agreements include student-specific information and are maintained by a school district. Weston pointed out that FERPA educational records may not be disclosed to the public without consent from the parent and are exempt from disclosure under the state public records law.

The SJC agreed that settlement agreements are educational records under FERPA, are confidential and therefore may not be disclosed because they fall within an exemption to the definition of a public record. Similarly, the Court found that settlement agreements are confidential under other laws and regulations because the agreements include student-specific information, making them exempt from disclosure as a public record. But this was not the end of the Court’s analysis.

Importantly, the SJC found that the state public records law places an affirmative obligation on Weston to redact personally identifying information from a settlement agreement. [5] And, once an agreement is redacted, the document becomes a public record that must be disclosed to Mr. Champa pursuant to the state public records law.

The Court found that disclosure to the public of redacted settlement agreements was consistent with FERPA and other laws and regulations protecting student confidentiality.

Weston had one more argument, which was that confidentiality clauses within the settlement agreements sought by Mr. Champa should preclude Weston’s disclosure of the agreements. Confidentiality clauses (sometimes referred to by parents as “gag orders”) are written into agreements to prevent the parties from disclosing the terms of the agreement to others, either orally or in writing.

It is not unusual for school districts to take the position that they will not enter into a settlement agreement with parents without such a confidentiality clause, and parents often agree to these clauses in order to obtain a settlement agreement.

The SJC was not persuaded. The Court found that confidentiality clauses in settlement agreements have no relevance to Weston’s obligation to disclose agreements under the public records law.

For these reasons, the SJC agreed with Mr. Champa that the state public records law requires Weston to provide him with copies of the requested settlement agreements, after all personally identifying information is redacted.

What May Be Redacted by a School District

An important aspect of this and similar disputes is the question of what specific information is to be redacted by the school district prior to the settlement agreement or other document being made available to the public. In the Champa dispute, the Court was not able to answer this question because the factual record was too “undeveloped” — it seems that the Court did not have the opportunity to see any of the requested settlement agreements. The SJC remanded the dispute back to the Superior Court to deal with this aspect of the case.

The decision explained (in footnote 20) that it would be appropriate for the school district to propose redactions and, if there is a dispute, for the Superior Court to rule on the disputed redactions. Nevertheless, the SJC decision provides some guidance regarding what may, and what may not, be redacted from settlement agreements and other documents prior to their disclosure to the public. The Court specifically mentioned that, contrary to Weston’s arguments, the public has the right to know the financial terms of settlement agreements – that is, what the parties agreed upon for purposes of payment for an out-of-district placement.

The decision also noted that the federal regulations under FERPA define the term “personally identifiable information” for purposes of determining what should be redacted so that a document may be released to the public under FERPA. Although the Court did not explicitly adopt this definition for purposes of determining what must be redacted under the state public records law, the Court quoted liberally from the definition and provided limited other guidance.

It therefore may be that school districts and parents may use the FERPA definition to help determine not only what should be redacted under FERPA but also what should be redacted under the state public records law.

What can be learned from the FERPA definition of personally identifiable information is that the following information would need to be redacted because it could be used to identify a particular student:

  • 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 [6].

The SJC decision seems clear that, at a minimum, this particular information should be redacted. The FERPA definition explains more generally what should also be redacted:

“... other 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.”

The FERPA definition further explains that the analysis to determine what should be redacted is a case-by-case determination that “considers … the availability to the requester of other information that indirectly identifies the student.” [7]

Similarly, the SJC explained: “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 [internal quotations and brackets omitted].”

It is axiomatic that a school district may only redact information as necessary to ensure the student’s confidentiality. Once the minimum necessary information has been redacted, the document becomes a public record and must be released to the public in that form.

In order to get a sense of what might be properly redacted from a settlement agreement, I reviewed a number of redacted settlement agreements that had been previously provided to me by different attorneys. In these agreements, only the student’s name, address and date of birth, the name of parents and the name of the school district were removed. In the typical settlement agreement, there is little if anything else in the document that could link the agreement to a particular student.

It may be useful to note what has been redacted from other student-specific documents before they are made available to the public. The Bureau of Special Education Appeals (BSEA), for example, routinely publishes its decisions with only the redaction of the student’s name and (usually) the date of birth, and the family’s name. Information in the BSEA decisions (that is not redacted) routinely includes the student’s educational profile, the student’s special educational services and programs, the student’s school years and grades, the name of the school district, and the names of teachers and providers.

Very occasionally, one or both parties to a BSEA dispute request that the BSEA further redact a decision prior to its publication perhaps because there is particularly sensitive information in the opinion, and BSEA Hearing Officers typically abide by these requests.

But even when the decisions are most heavily redacted, a substantial amount of information regarding the student (such as educational history, educational profile, special education services, names of experts, etc.) remains in the document that is made available to the public. [8]

Implications of the Decision

The central point of the SJC decision is that documents such as settlement agreements are public records after removal of personally identifying information, and the public has the right to obtain a copy of these documents from a school district. As a result, individual parents, special education Parent Advisory Councils, other organizations as well as any member of the public may now request copies of settlement agreements and other student-specific documents that were previously unavailable from a school district.

For example, the public would have the right to obtain a copy of mediation agreements once the personally identifying information is removed because after redaction, a mediation agreement would be a public record.

It should be noted that the SJC decision applies only to a school district’s responsibility to disclose written documents in its possession that are already (or can become through redaction) public records, as that term is defined in state law. Therefore, the decision has no bearing on what a parent himself or herself may (or may not) disclose either orally or in writing.

For example, the SJC decision does not change a parent’s responsibilities not to disclose certain information pursuant to a confidentiality clause in a settlement agreement.

Similarly, the decision has no bearing on a school district’s obligations to do anything other than make public records available to the public pursuant to the state public records law — for example, the Court’s decision does not require the school district to comment upon or explain what is in a document.

The SJC decision raises the question of whether access to redacted settlement agreements will have an impact either on individual special education disputes or on more systemic advocacy. As Mr. Champa found when he reviewed the Weston settlement agreements,

[9] analysis of a random sampling of agreements would likely reflect that parents frequently agree to a cost share of the student’s special education services or would reflect that parents have in other ways given up rights or claims under state or federal special education law.
 
And, what parents obtained through settlement agreements likely would vary significantly from one student to another, even within the same school district.
 
None of this is particularly surprising or illuminating. As in every other area of the law, parties agree to compromise their positions in order to obtain what they value most, and to avoid the cost, delay and uncertainty of litigation.
 
And, as is also true in other areas of the law, the merits of special education claims are dependent upon factors rarely revealed in a settlement agreement. As a result, one can never know whether what is reflected in a settlement agreement is more or less than what the parents would be entitled to under state and federal special education laws. This obviously limits what can be learned from an analysis of settlement agreements.
 
At the same time, however, it seems likely that school districts have a reason for trying so hard over many years to include confidentiality clauses in settlement agreements and have a reason for trying to convince the SJC not to require disclosure of settlement agreements.
 
Presumably, this reason is that school districts may be at a disadvantage in certain cases if parents find out how a school district has settled past disputes.
 
Each student is unique and as discussed above, settlement agreements do not include factors critical to understanding why the parties agreed to particular special education services. Nevertheless, it might possibly be helpful for a parent to understand what kinds of services or what kinds of compensation a school district has been willing to provide through settlement of disputes, particularly if it can be shown that in one or more cases, the school district has agreed to precisely the relief that parents are seeking. [10]
 
There is also the possibility that review of settlement agreements would be useful as a way to understand what terms are included (or not included) in settlement agreements entered into by a school district (or school districts) and how the agreements are structured.
 
For example, settlement agreements might reveal that a school district has been willing to pay for attorney fees in some cases, or might indicate how the parties have addressed the question of stay put, or might reveal whether a confidentiality clause or general waiver of responsibility are always included in a school district’s settlement agreements.
 
It seems possible that this information could support parents, their attorneys and advocates as they negotiate future settlement agreements. It is also possible that a special needs Parent Advisory Council might obtain useful information that would help it perform its statutory duty to advise the school committee, if analysis of the agreements reveals important patterns or trends.
 
Another possible, indirect implication of the SJC decision relates to the recurring dispute between parents and school districts as to whether parents may obtain redacted IEPs (and perhaps other redacted school documents) of the peers or prospective peers of a student with a disability. These documents are sometimes used to try to establish the inappropriateness of a district’s current and/or proposed placement.
 
School attorneys who object to these requests usually rely on an argument that the IEPs are student records under FERPA and under state regulations, and therefore may not be disclosed without the consent of each student’s parents. This is essentially the same argument that Weston proffered in the Champa dispute and that the SJC found unpersuasive.
 
It may also be useful to keep in mind that the SJC decision applies to the public’s right of access to public records held by any state agency in Massachusetts. This would include records held by the BSEA. For example, a member of the public seeking settlement agreements could seek them from individual school districts or, alternatively, could seek these same documents from the BSEA, so long as the BSEA had a copy of the agreements being sought.
 
Making a Request for a Public Record; Appealing a Denial of a Request
 
Requests for a copy (or for inspection) of a public record are made to the person who maintains that record – referred in the law as the custodian of a public record or the public records custodian. The request should be made in writing and delivered either in hand or via first class mail to the public records custodian. The request should describe the documents being requested and ask that the documents be provided as a public record under the state public records law. By law, the public records custodian must respond to the request within ten days following receipt of the request. [11]
 
Public entities (such as school districts) are permitted to charge persons seeking public records. The public records law explains that the charges may include a “reasonable fee” for copying records as well as the “actual expense” of searching for the requested records. [12]
 
For example, Mr. Champa requested that Weston provide him all settlement agreements that fell within a particular category, thus requiring Weston to spend time searching for those settlement agreements. More specific information regarding permissible charges is included in the “Guide to the Massachusetts Public Records Law” referenced near the end of this posting. For example, the Guide explains: “Unless specifically addressed by statue, a custodian may charge .20 per page for photocopies, .25 per page for microfilm copies and .50 per page for computer printouts.”
 
If the record custodian refuses or simply fails to comply with the request for a document, the person making the public records request may ask the Massachusetts Supervisor of Records (located at the offices of the Secretary of the Commonwealth) to decide whether the school district must disclose the document. This process can be initiated by sending a letter to the Supervisor of Records either by email to pre@sec.state.ma.us, or through the U.S. Postal Service to: Secretary of the Commonwealth, 1 Ashburton Place, Public Records Division, Room 1719, Boston, MA 02108.
 
The letter to the Supervisor of Records should include any correspondence from the public records custodian, as well as an explanation of what is being requested from the public records custodian, and why the requested document should be provided. If the Supervisor of Records decides that the document is a public record, he or she will order the public records custodian to disclose the document.
 
Any member of the public may telephone the Public Records Division at (617) 727-2832 to find out more about the public records law and how to file a request with the Supervisor of Records. A member of the public can also call this phone number to speak with the Attorney of the Day between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday. The Attorney of the Day is a staff member of the Public Records Division, reporting to the Supervisor of Records, and is available to answer general questions concerning the public records law.
 
Information regarding the public records law, including the process of requesting public records, may also be found in the “Guide to the Massachusetts Public Records Law” which is published by the Massachusetts Secretary of the Commonwealth. This Guide is online at

 
Summary
 
In sum, all that one can say for sure is that the SJC decision in the Champa case has changed the legal landscape regarding the public’s right to access previously unavailable, student-specific documents such as settlement agreements and mediation agreements.
 
The Court’s decision raises interesting and challenging questions for parents and school districts alike. Perhaps over time, we will understand better the practical implications of this decision.
 
Notes
 

[1] The court decision is available online at: https://scholar.google.com/scholar_case?case=7595215027362128427&q=champa+vs.+weston&hl=en&as_sdt=40000006

[2] Parent posted an article on this dispute, explaining who he is, why he sought the settlement agreements and what he has learned from obtaining settlement agreements from Weston. The article can be found online at http://www.specialneedsdigest.com/2015/12/significant-special-education-legal.html

[3] “Public records” are broadly defined to 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.” See M.G.L. c. 4, § 7, Twenty-sixth, which may be found online at https://malegislature.gov/Laws/GeneralLaws/PartI/TitleI/Chapter4/Section7

[4] The Massachusetts public records law requires public access of all public records in the possession of public entities such as the Weston School District. See M.G.L c. 66, § 10, which may be found online at https://malegislature.gov/Laws/GeneralLaws/PartI/TitleX/Chapter66/Section10

[5] The Court explained: “[t]he 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”).” The SJC noted that similarly FERPA provides a mechanism for a school district to redact sufficient information so that the student cannot be identified, allowing the school district to then release the record to the public without parent’s consent.
 
[6] 34 C.F.R. §§ 99.3.
 
[7] 34 C.F.R. §§ 99.3, 99.31(b)(1).
 
[8] To my knowledge, the BSEA decision that has been most heavily redacted is CBDE Public Schools, BSEA # 10-6854 (April 28, 2011). The decision may be found online at http://www.specialedlaw.com/database/cbde-public-schools-bsea-10-6854/

[9] Parent posted an article on this dispute, explaining what he has learned from obtaining settlement agreements from Weston. The article can be found online at http://www.specialneedsdigest.com/2015/12/significant-special-education-legal.html

[10] I also note the concern among some experienced parent attorneys that public access to settlement agreements would make some school districts reluctant to enter into certain types of settlements that the school district does not want to make public. Presumably, this concern is based on the premise that if the relief in settlement agreements is disclosed, it may assist a parent to obtain that same relief.
 
[11] See M.G.L c. 66, § 10(b), which may be found online at https://malegislature.gov/Laws/GeneralLaws/PartI/TitleX/Chapter66/Section10

[12] See M.G.L c. 66, § 10(a), which may be found online at https://malegislature.gov/Laws/GeneralLaws/PartI/TitleX/Chapter66/Section10

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