Cynthia Moore v. Department of Elementary and Secondary Education (SPR 20202618)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 15, 2021 SPR20/2618 Helene Bettencourt Primary Records Access Officer Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt: I have received the petition of Cynthia Moore appealing the non-response 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). Ms. Moore requested the following records: “…[a] list of all SEPACs which are in the Commonwealth currently [and] a copy of the waivers granted for the lack of a SEPAC [and] a copy of the names of all districts in the Commonwealth and all approved special education schools.” Ms. Moore filled an appeal with this office stating the Department has not responded or produced records responsive to her request. This appeal, SPR 20/2618, was opened as a result. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § 10(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 10(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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. It is unclear if the Department possesses the records requested by Ms. Moore. See G. L. c. 66, § 10(a)(ii), (b)(ii), (iii). The duty to comply with request for records extends to those 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 SPR20/2618 Page 2 January 15, 2021 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), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). If the records are within the Department's possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption). Accordingly, the Department is ordered to review the requests made by Ms. Moore and provide any requested records in accordance with the Public Records Law, its Access Regulations and this order within ten 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: Cynthia Moore