Joseph Smith v. Department of Elementary and Secondary Education (SPR 20211408)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2021 SPR21/1408 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 amendment 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); SPR21/1090 Determination of the Supervisor of Records (May 12, 2021). The Department provided an email response to this office and Mr. Smith on June 2, 2021. Unsatisfied with the Department’s response, Mr. Smith petitioned this office and SPR21/1408 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(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 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 SPR21/1408 Page 2 June 17, 2021 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 June 2nd response The Department explained in their June 2nd response “how to locate attachments to the .pdf file of responsive documents supplied to [Mr. Smith] by the Department. [They] offered this point of clarity because [Mr. Smith] asked for something that was included in the documents the Department provided to [him].” In addition, the Department further explained, “[t]he Department has reviewed its records and found that all documents that relate to background discussion have been provided. To the extent this is unclear, [they] will rephrase it: Apart from what was supplied to [Mr. Smith], the Department has no other records.” In his appeal, Mr. Smith stated, “[i]t is much more plausible that [the Department] hold more public records that fall under my request and suggest [the Department] re-verify internally at DESE.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Based on the Department’s June 2th response, I find Department has met its burden in responding to this request and provided all records in its possession. See G. L. c. 66, § 10(b)(ii)- (iii). Conclusion Where the Department has provided all records in its possession to Mr. Smith’s requests and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed.

Helene Bettencourt SPR21/1408 Page 3 June 17, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph Smith Joshua Varon