Joseph Smith v. Department of Elementary and Secondary Education (SPR 20211521)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 2, 2021 SPR21/1521 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); SPR21/1408 Determination of the Supervisor of Records (June 17, 2021). On June 18, 2021, Mr. Smith provided new information relating to his request and petitioned for a further appeal. SPR21/1521 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 SPR21/1521 Page 2 July 2, 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. Current Appeal In his appeal to this office on June 18, 2021, Mr. Smith claimed to have “come into possession of public records that should have been revealed in this PRR, but which DESE withheld.” The Department’s June 29th Supplemental response On June 29, 2021, the Department provided a supplemental response to Mr. Smith’s appeal. The Department stated “[b]ased on the description of records provided, the Department has reviewed its records and found that all documents that relate to ‘background discussion have been provided.’” The Department explained that “[o]n June 3, 2021 [the Department] received 3 additional requests from Mr. Smith (P001386-060321, P00187-060321, and P001389-060321). Each includes more specific search criteria for records regarding the DESE Transportation guidance released on February 11, 2021. The Department has produced the records for request number P001389-06032, and is reviewing the records that respond to the other requests which will be provided as soon as they are available. In response to each request, the Department has and will continue to provide to you exactly what has been requested.” Based on his June 18th appeal to this office, Mr. Smith states that new information came from “a different PRR.” It appears this was due to Mr. Smith narrowing the scope of his original request and submitting a new request to the Department. The public records request made by Mr. Smith is different from the original request made regarding SPR21/1408. Given that the Department has indicated it has provided all records responsive to this request, I find it has met its burden in responding to this request. See G. L. c. 66, § 10(b)(ii)-(iii). I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph Smith Joshua Varon