Cynthia Moore v. Department of Elementary and Secondary Education (SPR 20202486)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 29, 2020 SPR20/2486 Helene Bettencourt Records Access Officer Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt: I have received the petition of Ms. Cynthia Moore 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 August 18, 2020, Ms. Moore requested “a copy of the SEA’s policy(ies) and procedure(s) which define how ‘Child Find’ is to be executed in MA, documents which describe how the SEA is ensuring LEAs each have a policy and procedure which is in alignment with the state’s, copies of the LEA policy and procedures, documentation submitted to the Feds which demonstrate the enforcement activity of ensuring each LEA has a policy and procedure is occurring, and the data reporting on the child find activities (e.g. screening, evaluations, outcomes of these activities, timeliness of these activities)… also seeking documentation which describes how the SEA is enforcing the IDEA and MGL requirements that the child diagnosed during the course of the evaluations.” Claiming to not yet have received a response, Ms. Moore 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. 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 SPR20/2486 Page 2 December 29, 2020 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. Order Despite being notified of the opening of this appeal, the Department has yet to provide a response with respect to Ms. Moore’s request. Accordingly, the Department is ordered to provide Ms. Moore with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Ms. Moore may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Cynthia Moore