Craig Haller v. Department of Elementary and Secondary Education (SPR 20200918)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 24, 2020 SPR20/0918 Helene Bettencourt Associate Commissioner Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt: I have received the petition of Mr. Craig Haller appealing the nonresponse of the Department of Elementary and Secondary Education (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 10th, Mr. Haller requested the “[a]ll ‘Letter of Finding’ documents from PRS (formally PQA) concerning the Brookline Public Schools from January 2015 to the present.” Claiming to not yet have received a complete response, Mr. Haller petitioned this office and this appeal was opened as a result. 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, § 10A(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, § 10(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Helene Bettencourt SPR20/0918 Page 2 June 24, 2020 The Department’s Response In an email dated March 20, 2020, the Department responded to Mr. Haller’s request directing him to the Department’s “Public Records Center” stating that is where Mr. Haller could find “a report concerning complaints filed against Brookline Public Schools since January 2015 where the Department made a finding of non-compliance. The report also includes the specific ‘Category Code’ the department found out of compliance.” The Department further stated that “if you wish to proceed with requesting copies of Letters of Finding, the Department will have to assess a fee before production and release of records.” Mr. Haller responded on March 20, 2020, stating”[y]es, I would like to proceed with requesting copies of Letters of Finding. I understand, the Department will have to assess a fee before production and release of records. I do request the documents in electronic format as possible.” As of today, the Department has provided no further response. Order Despite being notified of the opening of this appeal from a member of the Public Records Division staff, no response has been provided. Accordingly, the Department is ordered to provide Mr. Haller with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations as soon as practicable. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Haller Courtney Sullivan