Sarah Joncas v. Department of Elementary and Secondary Education (SPR 20202008)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 2, 2020 SPR20/2008 Helene Bettencourt Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148-4906 Dear Ms. Bettencourt: I have received the petition of Sarah Joncas appealing the response of the Department of Elementary and Secondary Education (Department/DESE) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 30, 2020, Ms. Joncas requested, “contracts or agreements of collaborations between DESE and any medical doctor(s) between February 1, 2020 and present.” Previous appeal The requested records were the subject of a previous appeal. See SPR20/1924 Determination of the Supervisor of records (October 20, 2020). SPR20/1924 was closed after this office was notified that the Department had provided Ms. Joncas with a response on October 14, 2020. Claiming to not have received all the responsive records, Ms. Joncas petitioned this office and this appeal, SPR20/2008, 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 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 SPR20/2008 Page 2 November 2, 2020 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. Current appeal In its October 14, 2020 response, the Department enclosed copies of the records responsive to Ms. Joncas’ request. In her appeal petition, Ms. Joncas states “[r]ecords are still missing from this request. The records omitted include but are not limited to a contract with [an identified individual].” Based on Ms. Joncas’ claim, I find the Department must confirm if it possesses additional responsive records, including the above referenced contract. 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, § 10(a)(ii). To the extent that additional records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Department is ordered to provide Ms. Joncas with a response to the request, provided 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: Sarah Joncas