Janelle Dempsey v. Department of Elementary and Secondary Education (SPR 20210506)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 10, 2021 SPR21/0506 Helene Bettencourt Associate Commissioner Commissioner’s Office Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt: I have received the petition of Janelle H. Dempsey, Esq. of Lawyers for Civil Rights appealing the 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). On December 18, 2020 Attorney Dempsey’s client Will Austin requested, “... data for Boston Public Schools students. Specifically MCAS scores for the cohort that was included in reporting of median income of HS graduates - that data is not yet public on DESE. I would request the data the student level, anonymized, with demographic data available through SIS - race, gender, SWD, etc. show MCAS scores, HS graduation status, and median income.” On December 30, 2020, the Department responded. Unsatisfied with the Department’s response, Attorney Dempsey appealed, and SPR21/0506 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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 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 SPR21/0506 Page 2 March 10, 2021 burden of establishing the applicability of an exemption). The Department’s December 30th response In its December 30th response, the Department stated, “…the Department has no records that respond to your request. Creating this record is possible, but doing so would be highly time- consuming and burdensome particularly because the Department has not elected to create this record for its own purpose.” No Duty to Create Records Please be advised, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). 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). Conclusion Where the Department does not possess any records responsive to Attorney Dempsey’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Attorney Dempsey is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.L. c. 66 §10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Janelle H. Dempsey, Esq.