Frank Sivo v. Hopkinton, Town of - Public Schools (SPR 20171630)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 4, 2017 SPR17/1630 Carol Cavanaugh, PhD Assistant Superintendent Town of Hopkinton Public Schools 89 Hayden Rowe Street Hopkinton, MA O1 7 48 Dear Dr. Cavanaugh: I have received the petition of Frank Sivo appealing the response of the Town of Hopkinton Public Schools (School District) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sivo requested a copy of any existing record that: 1. Documents for the past three years, of any/all of the following metrics for the graduating population of students on Individual Educations Plans (IEPs): Mean GPA unweighted, mean GP A weighted, median GP A unweighted, median GP A weighted; 2. Documents the above requested metrics for graduating students NOT on IEPs: Mean GP A unweighted, mean GP A weighted, median GP A unweighted, median GP A weighted; and 3. Documents for the past three years that document the above requested metrics for any/all other ADA-protected classes of graduating students. Prior appeals This request was the subject of two prior appeals. See SPRl 7/1268 and SPRl 7/1603 Determinations of the Supervisor of Records (Supervisor) (September 21, 2017; November 20, 2017). The School District initially responded to the request on August 8, 2017; Mr. Sivo appealed the School District's August 8th response. I closed SPRl 7/1268 with the proviso that the School District provide Mr. Sivo with a supplemental response to the request. In its October lih supplemental response, the School District explained that it does not possess any existing document or record that is responsive to Mr. Sivo's particular request. However, the School District has offered to create a record that may provide Mr. Sivo with the particular information requested, and the School District provided Mr. Sivo with an estimate of One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Carol Cavanaugh, PhD SPRl 7/1630 Page 2 December 4, 201 7 costs to do so. Mr. Sivo objects to paying a fee for the requested information, and petitioned this office. As a result of Mr. Siva's petition, SPRl 7/1603 was opened. On November l 5t\ the School District provided a third response to this request, and I closed SPRl 7/ 1603 due to the further response. Mr. Sivo continues to object to the School District's response that it has no record responsive to the request, and he rejects the School District's fee estimate for creation of a record that may provide him with the specific information he seeks. Therefore, Mr. Sivo appealed the School District's November 15th response, and the current appeal, SPRl 7/1630, was opened. Current appeal - School District's November 15th response In its November 15th letter, the School District reiterated what was previously explained to Mr. Sivo in two written responses dated August gth and October li1\ in addition to discussions with this office. The School District stated that it does not have a record that is responsive to Mr. Sivo's specific request. In the prior responses, and in its most recent response on November 15t1\ the School District states, "[M]r. Siva's appeal underscores the fact that the public records law applies to data; however, we note that, just as with other types of public records, the law applies to data that already exists in record form, and does not require public bodies to analyze records and compile data according to certain criteria when the data does not already exist in that form." Under the Public Records Law, the School District is not required to create a record in response to a public records request. See G. L. c. 66, § 6A( d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). Mr. Sivo suggests in his November 14th letter that the School District provide a list of children on IEPs but change the name of the student to something coded in order to protect the identity of the child. He also suggests that the School District provide another, separate, list of student performance using the same codes from the list of children with IEPs along with the performance data. This, he believes, would enable him to link the data and perform the analysis. In its November 15th letter, the School District explains, "[w]e note that this (the process suggested by Mr. Sivo) is precisely the process that the School District detailed in its responses to Mr. Sivo and offered to do -- despite the fact that the process effectively creates a new record - something the District is not required to do in response to a public records request; provided that Mr. Sivo pay the reasonable costs of that process." Conclusion Accordingly, whereas the School District does not have a record responsive to the request, nor is it required to create the coded lists or perform the requested analysis of the data, I consider this administrative appeal closed.

Carol Cavanaugh, PhD SPRl 7/1630 Page 3 December 4, 2017 If Mr. Sivo is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Sivo