COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Foxborough Public Schools v Norwood Public Schools, the Department of Elementary and Secondary Education, and Student
BSEA# 26-00283
RULING ON NON-PARTY MASSACHUSETTS DEPARTMENT OF CHILDREN AND FAMILIES’ OBJECTION AND PETITION TO VACATE PLAINTIFF, FOXBOROUGH PUBLIC SCHOOLS’ SUBPOENA DUCES TECUM
This matter comes before the Hearing Officer on the Objection and Petition to Vacate Plaintiff, Foxborough Public Schools Subpoena Duces Tecum (Objection) filed by non-party Massachusetts Department of Children and Families (DCF or the Department) in a matter pending before the Bureau of Special Education Appeals (BSEA). As neither testimony nor oral argument would advance my understanding of the issues involved, I am issuing this Ruling on DCF’s Objection without a hearing, pursuant to Rule VI(D) of the Bureau of Special Education Hearing Rules for Special Education Appeals (BSEA Hearing Rules). For the reasons set forth below, DCF’s Objection is ALLOWED.
FACTUAL BACKGROUND[1] AND PROCEDURAL HISTORY
On July 9, 2025, Foxborough Public Schools (Foxborough or the District) filed a LEA (Local Educational Agency) Assignment Hearing Request (Hearing Request) with the BSEA against Norwood Public Schools (Norwood), the Department of Elementary and Secondary Education (DESE), and Student, seeking a determination that DESE erred in assigning programmatic and financial responsibility for Student’s special education program to the District. Specifically, Foxborough argues that Student, who attends a separate public day school[2] and has been staying with Parent at a hotel[3] within its geographical limits since on or about February 2025, is homeless under the McKinney-Vento Homeless Assistance Act (McKinney-Vento). As such, as her last known residence, Norwood is her “district of origin” pursuant to relevant statutes and should continue to bear programmatic and fiscal responsibility for her. In the underlying LEA Assignment matter, on or about June 18, 2025, DESE issued an Assignment of School Responsibility, finding that Student was not homeless, and assigned programmatic and financial responsibility for her special education program to Foxborough. The Hearing on Foxborough’s LEA Assignment Hearing Request was scheduled for July 29, 2025.
Norwood filed its Response to Foxborough’s Hearing Request on July 17, 2025. On July 18, 2025, Foxborough filed an assented-to request to postpone the Hearing to October 6 and 10, 2025, due to a scheduling conflict and to allow sufficient time to prepare for Hearing. This request was allowed for good cause the same day. On July 21, 2025, DESE filed its Response to Foxborough’s Hearing Request.
Pursuant to the parties’ joint request, on August 18, 2025, the undersigned Hearing Officer issued an Order providing that the matter would proceed on written submissions, rather than live testimony, on October 10, 2025.
Also on August 18, 2025, the BSEA issued a subpoena duces tecum to the Keeper of Records at DCF, requesting a number of documents related to Student.[4] On September 17, 2025, Counsel for DCF filed a Limited Notice of Appearance and its Objection to and Petition to Vacate [Foxborough]’s[5] Subpoena Duces Tecum (First Objection).[6] The Department argued that the request for records: (1) does not relate with reasonable directness to any matter in question; (2) seeks information or documents that are presumptively privileged; (3) is overly broad and not narrowly tailored to the issue before the BSEA; (4) is unreasonable and oppressive; and (5) was not issued within a reasonable period of time in advance of when the evidence was requested. Foxborough filed its Opposition to DCF’s First Objection on September 19, 2025 (Objection).
Following a Conference Call that took place on September 25, 2025 to discuss DCF’s First Objection and Foxborough’s Opposition, Foxborough agreed to withdraw its request and seek a narrower subpoena duces tecum for DCF records. Also on September 25, 2025, the parties jointly requested that the due date for final written submissions/arguments be extended to November 18, 2025, with oral arguments on November 19, 2025, to permit Foxborough to complete its review of records the District had obtained. This request was allowed for good cause on September 26, 2025.
On October 15, 2025, Foxborough requested that the BSEA issue a subpoena duces tecum to DCF seeking:
- Complete copies of all correspondence, which shall include but not be limited to all mail, electronic mail (including attachments), and/or text messages, from any individual employed by the Department of Children and Families and any individual employed by the Massachusetts Department of Elementary and Secondary Education from January 1, 2025, through present regarding [Student] and her living situation at [Hotel], located at [redacted address]. Said correspondence shall include, but not be limited to, correspondence which described the financial rental arrangements and physical attributes of the room the Student is staying in at [Hotel], located at [redacted address], including descriptions of rooms, furnishings, and amenities.
- Any and all documents within DCF’s possession, custody and control relating to the financial rental arrangements and physical attributes of the room the student is staying in at [Hotel], located at [redacted address].
The BSEA issued the subpoena on October 16, 2025.
On October 24, 2025, DCF filed the instant Objection. The Department cites M.G.L. c. 119, § 51E and M. G.L. c. 112, § 135A and argues, further, that the BSEA lacks the authority to issue an Order compelling the agency to comply with the subpoena, “as that authority is expressly reserved for a judge of the Superior Court.”[7]
Foxborough did not file a response to the Objection. In its initial Opposition, Foxborough asserted that the information the District had requested by way of the subpoena duces tecum related directly to a matter in question. According to Foxborough, DESE had indicated in its Assignment of School District Responsibility that in determining that Student was not homeless, it had reviewed information provided by Student’s former DCF caseworker regarding the space in which Student lived with Parent.
DISCUSSION
- Legal Standards for Motions to Quash
The issuance of subpoenas in BSEA hearings is governed by BSEA Hearing Rule VII. Pursuant to BSEA Hearing Rule VII(B), a party may serve a subpoena duces tecum on a nonparty, requesting that documents be delivered to the office of the party requesting the documents prior to the hearing. BSEA Hearing Rule VII (C) permits a person receiving a subpoena to request that the Hearing Officer vacate or modify the subpoena.[8] Under the BSEA Hearing Rules,a Hearing Officer may grant this request upon a finding that the testimony or documents sought are not relevant to any matter in question; or that the time or place specified for compliance or the breadth of the material sought imposes an undue burden on the person subpoenaed.[9] Massachusetts law also permits a Hearing Officer to vacate or modify a subpoena “upon a finding that . . . the evidence whose production is required, does not relate with reasonable directness to any matter in question, or that a subpoena for . . . the production of evidence is unreasonable or oppressive . . . .”[10] If a person fails to comply with a subpoena issued by a Massachusetts agency, the party requesting that the subpoena be issued may seek enforcement of the subpoena in the Superior Court.[11]
- Other Relevant Legal Standards Cited by DCF
Under Massachusetts law, communications between a licensed social worker employed in a state, county, or municipal governmental agency and a client are confidential.[12] With exceptions that are not relevant in the instant matter, “[n]o such social worker, colleague, agent or employee of any social worker, whether professional, clerical, academic or therapeutic, shall disclose any information acquired or revealed in the course of or in connection with the performance of the social worker’s professional services, including the fact, circumstances, findings or records of such services.” Licensed Department social workers also have a testimonial privilege that protects communications regarding a client’s mental or emotional condition, under which in any “administrative proceedings, a client shall have the privilege of refusing to disclose and of preventing a witness from disclosing, any communication, wherever made, between said client and the social worker . . . relative to the diagnosis or treatment of the client’s mental or emotional condition.”[13]
In addition to files maintained by caseworkers, Massachusetts law requires DCF to “maintain a central registry of information” relating to families that are involved with the agency in particular ways.[14] “Data and information relating to individual cases in the central registry shall be confidential and shall be made available only with the approval of the commissioner or upon court order.”[15] DCF regulations permit the “release to any Department provider or other individual or entity acting at the Department’s request, any records, documents, or information [regarding children in its care or custody] which in the judgment of the Department is necessary for service delivery to children in the care or custody of the Department.”[16] This release of personal information about a child in its care and custody, and the child’s family, to entities such as medical providers, foster parents, and schools, is for the purpose of enabling those entities to provide needed services, and is in the discretion of the Department.[17]
DCF regulations also provide that where Department records are sought by way of a subpoena “in any civil proceeding,” DCF shall not release those records until it has “made reasonable efforts to notify each data subject identified in the records,” and that individual has a reasonable time to seek to quash the subpoena.[18] In the alternative, “the Department may elect to bring the entire file (unredacted, and without prior notification to any third parties named therein) before a judge in camera, and seek an order from said judge as to which records must be released;” before such release, DCF shall attempt to notify the third parties involved.[19]
In its Objection, DCF asserts that the BSEA is not a court within the meaning of M.G.L. c. 119, § 51F, that can issue an order compelling release of individual case information from the central registry, and that BSEA proceedings are adjudicatory hearings subject to M.G.L. c. 30A, not civil proceedings within the meaning of 110 C.M.R. § 12.07. Moreover, 110 C.M.R. § 12.07, according to DCF’s Objection, “does not relieve the Department of its obligations under [M.]G.L. c. § 51F and [M.]G.L. c. 112, § 135A[;] [s]uch language merely conforms with the language and requirements of [M.]G.L. c. 66A[, which] does not supersede that of [M.]G.L. c. 119, §51F and [M.]G.L. c. 112, §135A absent specific language to the contrary.”
- Application
According to Foxborough, in making its LEA assignment, DESE reviewed (and presumably relied on) information provided by DCF regarding Student’s living arrangements. As such, Foxborough is correct that the information it seeks from DCF, namely information regarding the physical attributes of the room, financial arrangements, and the like, is relevant for purposes of my review of DESE’s determination that Foxborough bears programmatic and financial responsibility for Student’s special education program.
DCF is also correct that the BSEA is not a court, within the meaning of M.G.L. c. 119, § 51F, that can issue an order that confidential “data and information relating to individual cases in the central registry” shall be made available. Moreover,
information regarding Student “acquired or revealed in the course of or in connection with the performance of [her] social worker’s professional services, including the fact, circumstances, findings, or records of such services” is presumptively privileged.[20] As a minor, Student cannot consent to the release of confidential information, and there is nothing in the record to indicate that Parent has done so. There is also nothing in the record to suggest that Student is in the care or custody of the Department, implicating potential exceptions under 110 C.M.R. §12.06. Furthermore, even if Student were in the Department’s care, DCF has not indicated that release of information regarding Student is in her best interest; instead, it is challenging the issuance of a subpoena duces tecum seeking this information.[21]
To the extent Foxborough seeks correspondence between DESE and DCF regarding Student and her living situation, it may request such correspondence from DESE without implicating the same statutory and regulatory protections raised by the Department. To the extent Foxborough seeks information in DCF’s “possession, custody and control relating to the financial rental arrangements and physical attributes of the room the student is staying in at [Hotel], located at [redacted address],” it is because, as the District asserts, DESE relied on that information in making its LEA assignment. The District may obtain this information from DESE by way of a subpoena duces tecum and/or through live testimony. Given the important countervailing confidentiality concerns that arise when DCF records are sought, and the availability of this information through other means in this case, I need not address DCF’s final argument that BSEA proceedings are adjudicatory hearings subject to M.G.L. c. 30A, not civil proceedings within the meaning of 110 C.M.R. § 12.07. I find that although the material sought is relevant to the matter in question, in the specific circumstances of this case, “the breadth of the material sought imposes an undue burden” on DCF.[22]
CONCLUSION
For the reasons above, Non-Party Massachusetts Department of Children and Families’ Objection and Petition to Vacate Plaintiff, Foxborough Public Schools Subpoena Duces Tecum is hereby ALLOWED.
ORDER
The subpoena duces tecum issued by the BSEA to DCF on October 16, 2025 is hereby VACATED. The matter will proceed to Hearing on written submissions, with exhibits due by close of business on November 18, 2025, and oral arguments over a virtual platform at 11:00 AM on November 19, 2025.
By the Hearing Officer,
/s/ Amy Reichbach
Date: November 10, 2025
[1] The facts reviewed in this section are drawn from the parties’ pleadings and apply only for the purposes of this Ruling.
[2] According to Foxborough, Student attends a separate public day school pursuant to an Individual Education Program (IEP) developed by Norwood for the period November 15, 2024 to November 13, 2025. The name of the public day school is withheld to maintain the confidentiality of Student and Parent.
[3] The name of the Hotel is withheld to maintain the confidentiality of Student and Parent.
[4] Foxborough initially requested “complete copies of any and all records, reports, evaluations, assessments, whether formal or informal, correspondence, electronic mail messages, telephone records, tape recording, video recordings, photographs, notes, minutes, diaries, letters, memoranda, agreements, contracts, tests, test data, test protocols, testing/observation notes, work sheets, measurements, bills, invoices, agreements, and contract pertaining to” Student since January 1, 2023.
[5] DCF inadvertently named Norwood Public Schools in its First Objection but later corrected its filing.
[6] The parties filed Objections to each other’s Discovery Requests but have been communicating about those requests and objections without requiring the Hearing Officer’s assistance.
[7] DCF also incorporated, by reference, the arguments raised in its initial Objection. In that Objection, among other things, DCF argued that records and information maintained by the Department are “presumptively privileged and confidential.”
[8] Cf. M.G.L. c. 30A, § 12(4) (providing standard for vacating or quashing a subpoena within administrative proceedings).
[9] See BSEA Hearing Rule VII(C); In Re Dorian & Waltham Public Schools, Ruling on Parent’s Motion to Quash and Vacate Subpoenas and Waltham Public Schools’ Motion to Compel, BSEA #1702306 (Reichbach, 2017).
[10] M.G.L. c. 30A, § 12(4); see In Re: Student & Newburyport Public Schools, Ruling on Newburyport Public Schools’ Motion for Summary Judgment and Newburyport Public Schools’ Motion to Quash,BSEA #2508136 (Reichbach, 2025).
[11] M.G.L. c. 30A, § 12(5) (“Upon the failure of any person to comply with a subpoena issued in the name of the agency and not revoked or modified by the agency as provided in this section, any justice of the superior court, upon application by the agency or by the party who requested that the subpoena be issued, may in his discretion issue an order requiring the attendance of such person before the agency and the giving of testimony or production of evidence. Any person failing to obey the court’s order may be punished by the court for contempt.”)
[12] See M.G.L. c. 112, § 135A.
[13] M.G.L. c. 112, § 135B.
[14] M.G.L. c. 119, § 51F.
[15] Id.; see 110 C.M.R. § 12.02.
[16] 110 C.M.R. § 12.06.
[17] See id.
[18] 110 C.M.R. § 12.07.
[19] Id.
[20] Id. Licensed Department social workers also have a testimonial privilege that, with some exceptions, protects communications regarding a client’s mental or emotional condition. See M.G.L. c. 112, § 135B.
[21] Cf. 110 C.M.R. § 12.06 (permitting the Department to release information about children in its care and custody to service providers where that information is, in its judgment, necessary for service delivery to such children).
[22] See BSEA Hearing Rule VII(C). For the same reasons, in the specific circumstances of this case, a subpoena for the production of this evidence is “unreasonable or oppressive.” See MG.C. c. 30A, § 12(4). My conclusion that this subpoena is unduly burdensome and unreasonable or oppressive is informed by my analysis above regarding the lack of client consent; DCF’s decision to challenge the subpoena; and Foxborough’s ability to obtain the information through other means that are less invasive of Student’s and Parent’s confidential relationships with DCF.