Joseph Smith v. Department of Elementary and Secondary Education (SPR 20211090)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 12, 2021 SPR21/1090 Helene Bettencourt Records Access Officer Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148-4906 Dear Ms. Bettencourt: I have received the petition of Joseph Smith appealing the response of the Department of Elementary and Secondary Education (Department/DESE) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 25, 2021, Mr. Smith requested any records related to the updating process of a certain Department guidance document. Previous appeals This request was the subject of previous appeals. See SPR21/0928 Determination of the Supervisor of Records (April 20, 2021); SPR21/1010 Determination of the Supervisor of Records (April 28, 2021). SPR21/0928 was closed after this office was notified that the Department had provided a response on April 20, 2021. Unsatisfied with the Department’s response, Mr. Smith petitioned this office and SPR21/1010 was opened as a result. SPR21/1010 was closed after this office was notified that the Department had provided a response on April 27, 2021. Unsatisfied with the Department’s response, Mr. Smith petitioned this office and this appeal, SPR21/1090, 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). 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 SPR21/1090 Page 2 May 12, 2021 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. The Department’s April 27th response On April 27, 2021, the Department emailed this office stating “[t]he records released by DESE did include Professor Allen’s PowerPoint presentation. Attachments are embedded in the .pdf document, and to access them you may need to visit the ‘attachments view’ which is located in a column on the left side of the document. The Department has reviewed its records and found that all documents that relate to background discussion have been provided.” On April 28, 2021, Mr. Smith explained, “it stands to reason that there must have been discussion about how this study was selected for citation and why it was thought to justify not distancing on a bus before presenting it to outside doctors to confirm such an internal opinion.” Mr. Smith further explained that in his request he asked for “discussions as they relate to any changes that resulted in the 02.11.21 update. Instead, all that has been provided was information AFTER the changes were made seeking final sign off. Also, substantively, physical distancing was not the only modification as a result of the 02.11.21 update, and my request covers seeking discussions around all changes in said update.” It is unclear if the Department possesses additional records responsive to the request. 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). If the Department does possess requested records and intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). Conclusion Accordingly, the Department is ordered to provide Mr. Smith with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Helene Bettencourt SPR21/1090 Page 3 May 12, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph Smith