Karen A. Whitley v. Department of Elementary and Secondary Education (SPR 20211226)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 24, 2021 SPR21/1226 Josh Varon, Esq. Legal Counsel Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Attorney Varon: I have received the petition of Attorney Karen A. Whitley, on behalf of the Mystic Valley Regional Charter School (MVRCS), appealing the response of 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 17, 2020, Alexander J. Dan, Superintendent of MVRCS, requested the following: 1. All complaints regarding or pertaining to MVRCS from September 1, 2017 through November 30, 2020. 2. All communications, including but not limited to email records and attachments, regarding or pertaining to MVRCS with any parties other than MVRCS administration from September 1, 2017 through November 30, 2020. Following numerous communications between MVRCS and the Department, on January 27, 2021, the Department provided records responsive to the first part of the request. Beginning that same day and continuing through May 7, 2021, the Department and MVRCS communicated extensively to narrow the scope of the second part. However, by May 14, 2021, MVRCS had not received any documents responsive to the second part of the request. Unsatisfied with the Department’s response, MVRCS appealed, and this case 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

Josh Varon, Esq. SPR21/1226 Page 2 May 24, 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. The Department’s May 19th Response On May 19, 2021, the Department provided a supplemental response, including “an installment of records that responds to this public records request.” The Department also provided a cover letter indicating “[t]he Department will produce subsequent installments of records as soon as they are available.” G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas the request from MVRCS was submitted on December 17, 2020, and the Department has not provided a timeframe in which it intends to produce further records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Department must provide an estimated date as to when it intends to provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide MVRCS with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations 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

Josh Varon, Esq. SPR21/1226 Page 3 May 24, 2021 pre@sec.state.ma.us. MVRCS may appeal the substantive nature of the Department’s supplemental response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Karen A. Whitley, Esq. Alexander J. Dan, Superintendent