Kathy Davidoff v. Department of Elementary and Secondary Education (SPR 20202345)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2020 SPR20/2345 Jonathan W. Spadafora Business Management Specialist Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Jonathan Spadafora: I have received the petition of Kathy Davidoff 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 November 5, 2020, Ms. Davidoff requested various categories of records concerning Weston Public Schools. 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, § l0A(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. Conclusion Subsequent to the intervention by a staff member of the Public Records Division, I learned that the Department provided Ms. Davidoff a response dated November 30, 2020. In a follow-up letter to this office dated December 2, 2020, the Department states, “I apologized for the mix up, closing her request after the partial release and notified her that we would be producing the records free of charge...I estimated the timeline to produce should be about 2 weeks or so. I’m shooting for Friday December 18th, but informed Ms. Davidoff that I would 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

Jonathan W. Spadafora SPR20/2345 Page 2 December 8, 2020 follow-up if anything changes.” In light of the Department’s November 30th response and communications with this office, I will now consider this administrative appeal closed. Ms. Davidhoff may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Kathy Davidoff Helene Bettencourt