Tim Bonham v. Department of Elementary and Secondary Education (SPR 20211762)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 30, 2021 SPR21/1762 Josh Varon, Esq. Associate General Counsel Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148-4906 Dear Attorney Varon: I have received the petition of Tim Bonham appealing the response of the Department of Elementary and Secondary Education (DESE) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 10, 2021, Mr. Bonham requested “I would like to make an additional public request for the date you were notified in writing and or in person that students were denied classes at MTU. I would also like to make a public request for the dates you visited the facility after the date these issues were reported to you in the same school year.” DESE responded on June 16, 2021. Unsatisfied with the DESE’s response, Mr. Bonham appealed, and SPR21/1762 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. SPR21/1762 Page 2 July 30, 2021 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. DESE’s responses In DESE’s June 16th response they asserted that “…specific information related to prior public records requests you are requesting to receive as an attachment via email, even for records you could not access on DESE Public Records Center. Precise information such as date, time, and a description of the records will ensure we send you what you are requesting.” In an email response sent on July 14, 2021, DESE stated “[t]he Department is happy to provide Mr. Bonham with .pdf formatted copies of the records already produced to him. We simply need to know which requests and which records he’s talking about. This, I believe, is why you asked for him earlier to clarify the records that are the subject of his appeal. This, I believe, is why Mr. Bonham was not satisfied with the records produced to him on June 10. The Department does not know the requests to which Mr. Bon ham[sic] is referring.” Current Appeal In his appeal petition, Mr. Bonham indicates that DESE has responsive records to his request. Reasonable Description of Records Sought A public records request must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior Court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019). Conclusion Based on the forgoing, I find it is unclear which specific records Mr. Bonham seeks. Mr. Bonham may wish to modify or clarify his request to DESE in order to provide the sufficient particularity needed in order for DESE to search its records. G. L. c 66, § 10(a)(i) (the request must reasonably describe the public record sought). Accordingly, I will now consider this administrative appeal closed. If Mr. Bonham wishes to submit a clarified public records request to DESE as outlined above, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1).

Josh Varon, Esq. SPR21/1762 Page 3 July 30, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Tim Bonham