David D. Palmer v. Belmont Public Schools (SPR 20210287)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 19, 2021 SPR21/0287 John Phelan Superintendent of Schools Belmont Public Schools 644 Pleasant St. Belmont, MA 02478 Dear Supt. Phelan: I have received the petition of David D. Palmer appealing the response of the Belmont Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Palmer requested certain records related to “math placement tests given to students at Chenery Middle School between 2011 and 2019.” The School provided Mr. Palmer with a response on January 6, 2021, which he appealed to this office. 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 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. 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

John Phelan SPR21/0287 Page 2 February 19, 2021 Current Appeal In the School’s January 6th response, they denied Mr. Palmer’s request citing Exemption (l) in order to withhold all records. The School explained that “records [Mr. Palmer] requested are exempt from disclosure pursuant to G.L.c.4, 7 (26) (l): questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument.” In Mr. Palmer’s February 4, 2021 appeal to this office he states the “tests in questions were last administered in May 2019 by the Belmont Public Schools, and according to the Belmont School Superintendent John Phelan, the placement tests were officially discontinued in October 2019.” Exemption (l) Exemption (l) permits the withholding of records that are: questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument G. L. c. 4, § 7(26)(l). There are no authoritative Massachusetts decisions interpreting Exemption (l). The general purpose of Exemption (l) is to prevent individuals from gaining an unfair advantage by accessing test questions and test answers prior to the administration of an examination. As long as the same materials are used to administer subsequent examinations, the custodian of records may continue to withhold the materials pursuant to Exemption (l). From the School’s January 6th response it is unclear whether the testing questions are being used currently or for future examinations by the School. The School must clarify this. Conclusion Accordingly, the School is ordered to provide Mr. Palmer with a response 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.

John Phelan SPR21/0287 Page 3 February 19, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: David D. Palmer