Ben Tobin v. Department of Elementary and Secondary Education (SPR 20211565)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 8, 2021 SPR21/1565 Helene Bettencourt Records Access Officer Department of Elementary and Secondary Education 78 Pleasant Street Malden, MA 02148-4906 Dear Ms. Bettencourt: I have received the petition of Ben Tobin 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). Mr. Tobin requested: “…the MCAS results for the approved special education schools going from 2015-2019. I would also like to know how many students attending these schools have been provided with MCAS Proficiency Plans…and how proficiency is being defined for these students. If there is any data on student progress as well…what type of assessments and progress monitoring tools used…what kind of data gets sent to the state…and generally how students in these schools are being progress monitored.” Prior appeal This request was the subject of a previous appeal. See SPR21/1461 Determination of the Supervisor of Records (June 23, 2021). SPR21/1461 was closed after this office learned that the Department had provided Mr. Tobin with a supplemental response on June 22, 2021. Unsatisfied with the Department’s response, Mr. Tobin petitioned this office and this appeal, SR21/1565, 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 SPR21/1565 Page 2 July 8, 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 June 22nd response In its June 22, 2021 response, the Department states: [t]o begin, creating the record Mr. Tobin has requested would require aggregating student data from different databases contained within the Department, formatting a new report, suppressing results to ensure privacy when results apply to small samples sizes of students, and quality control…In addition, data analysts would need to develop entirely new business rules to properly account for students who may have been enrolled in multiple schools during the same school year. Finally, the Department would need to determine how to identify the results for all desired approved special education programs. Many such programs have legacy school codes and may run programs in test sites across multiple locations. Materials required to administer MCAS are ordered by and delivered to specific test sites within individual programs, not to the schools. Once mapped, those sites would need to be recoded and aggregated under a parent program code. In short, regardless of whether this task will provide the information and benefits that Mr. Tobin claims, the labor and programming required to do this is extensive and requires far more than simply reorganizing or copying and pasting columns from a spreadsheet. In his June 23rd petition, Mr. Tobin asserts, “[t]he data has clearly been assembled in some form already or the study [the Department] conducted themselves would not have been possible. Secondly, [the Department] assembl[es] this data to send to the schools individually. If every school that accepts state funds from taxpayers…has to take the MCAS, and the MCAS is meant to be shared publicly and used as a source of very basic accountability, I’m curious why these [private schools] are an exception to the rules that public schools have to follow.” In light of the above, I find the Department must clarify whether it possesses responsive records. 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the

Helene Bettencourt SPR21/1565 Page 3 July 8, 2021 desired information. See 950 C.M.R. 32.04(5). Conclusion Accordingly, the Department is ordered to provide Mr. Tobin with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ben Tobin Joshua Varon, Esq., DESE