Gary Floyd v. Department of Elementary and Secondary Education (SPR 20201698)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 29, 2020 SPR20/1698 Helene H. Bettencourt Assistant Commissioner Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148-4906 Dear Ms. Bettencourt: I have received the petition of Gary Floyd appealing the response of the Department of Education (DOE) Department of Secondary and Elementary Education (DESE) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Floyd requested: “1. How many individual teachers in Massachusetts had 51A charges filed on them in the last five years (due to privacy concerns, I don’t need names, they can be listed as teacher 1, teacher 2 (etc. etc.); 2. The date the 51A charges were filed on each individual teacher; 3. Whether the charges were confirmed by DCF or any regulating body; 4. What was DESE’s response to the charges (i.e. loss of license or written reprimand etc. etc.); [a]nd, 5. [F]inally, the date that DESE implemented each remedy.” DESE, through DOE, provided Mr. Floyd with certain statistical information responsive to his request; however, DOE withheld information pertaining to 62 cases responsive to Mr. Floyd’s request. In Ms. Courtney Sullivan’s response from the Commissioner’s Office of DOE, Ms. Sullivan states, “….I cannot share additional information about the other 62 cases due to confidentiality requirements, supported under the Public Records Law by the statutory exemption [G. L. c. 4, sec. 7(26)(a)] and the investigatory exemption [G. L. c. 4, sec. 7(26)(f).” DOE indicates that some of the 62 cases remain open and under investigation, and the information cannot be shared. Upon review of the DOE response to Mr. Floyd’s request, the response does not meet the burden of specificity in identifying records in its possession and in withholding records pursuant to the exemptions in the Public Records Law. A Senior Attorney in the Public Records Law 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 H. Bettencourt SPR20/1698 Page 2 September 29, 2020 contacted you by telephone, but was unable to connect with you directly to discuss this appeal. Burden of specificity; segregable portions DOE denied Mr. Floyd’s request under Exemptions (a) and (f) of the Public Records Law without proving with specificity how the exemptions apply to withhold the records in their entirety. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. - - - - - 852, 857 (1995); Flatley, 419 Mass. at 511. DOE did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). DOE must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). In addition, DOE did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (a) and the applicable statute that operates through Exemption (a), and to withhold records under Exemption (f) of the Public Records Law. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, DOE/DESE is ordered to provide Mr. Floyd with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Gary Floyd