Erika Rickard v. Department of Early Education and Care (SPR 20171731)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 8, 2018 SPR17/1731 Denise J. Karlin, Esq. Assistant General Counsel Department of Early Education and Care 51 Sleeper Street, 4th Floor Boston, MA 02210 Dear Attorney Karlin: I have received the petition of Erika Rickard, Esq. appealing the response of the Department of Early Education and Care (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Rickard requested "the following information for all licensed early childhood childcare programs in Massachusetts as of FY2016: Name of EEC-licensed childcare program/ provider, [w]hether the program /provider is a family child care or center-based program, [a]ddress where program I provider is located (city or zip code is sufficient), QRIS level of the program/ provider." In a response dated September 20, 2017, the Department provided an Excel spreadsheet that contained certain responsive information, but withheld other information under Exemption (d) of the Public Records Law. G .. L. c. 4, § 7(26)(d). The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Denise J. Karlin, Esq. SPRl 7/1731 Page 2 January 8, 2018 Exemption (d ) In its September 20th response the Department explains "[t]he attached table is for FY 2016 and includes all the information requested except the QRIS levels. QRIS levels, either self assessed ot EEC granted, are not public information." You indicate that the QRIS level for a specific program/provider is being withheld under Exemption ( d). Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7(26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7 (26)( d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 88 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). You assert that "[a]t this point EEC's Quality Rating and Improvement System is still [under] review and development. EEC had conducted a Validation Study of the MA QRIS, and in 2017 began making draft revisions to the MA QRIS based on the results of this study and feedback from the field." You further note that "EEC is now soliciting public comment on the proposed revisions to the MA QRIS. After the public comment period is complete and all ............. feedback has .been reviewed and ana~ed, EEC will present the proposed final version of the ·~ MA QRIS Standards to the Board of Early Education and Care." Finally, you claim that "[t]herefore, at this point, any QRIS rating is still being awarded under a pilot system that is still in development and EEC will not release these ratings because they are not public records." In her appeal petition Attorney Rickard asserts "I have no interest in the policy deliberations about what should or should not be included in future QRIS standards, and my request did not include anything of the kind. My request is limited to the factual information of the names and locations of licensed EEC early childhood care providers and programs, and the QRIS level they have already been designated." She requests that this office "recognize that FY2016 QRIS levels are a matter of public record, and require that EEC provide the QRIS levels of all FY2016 care providers / programs, as initially requested. In the alternative, I request a listing of all FY2016 care providers / programs that were paid a stipend corresponding to their QRIS level, and what designation they had attained in order to receive such payment."

Denise J. Karlin, Esq. SPRl 7/1731 Page 3 January 8, 2018 Due to the fact that the request is for FY2016 QRIS levels, which have already been designated, the Department has not met its burden to show how this information is not purely factual, nor how disclosure would taint the deliberative process. Further, despite the draft revisions and public comment period in 2017, the Department has not established how FY2016 QRIS levels are recommendations on legal or policy matters or how they are "inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency" as required by Exemption (d). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted you about this matter. Conclusion Accordingly, the Department is ordered to provide Attorney Rickard with responsive records in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Erika J. Rickard, Esq.