Marion J. King v. Fall River, City of - Public Schools (SPR 20211780)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 2, 2021 SPR21/1780 Debra Cabral Records Access Officer Fall River Public Schools 417 Rock Street Fall River, MA 02720 Dear Ms. Cabral: I have received the petition of Marion J. King appealing the response of the Fall River Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 31, 2021, Ms. King requested “[a]ll entrance and exit criteria / guidance documents for the special education programs within the Fall River Public School District.” She also specifically requested “any reasonably completed factual studies or reports on which the development of such policy positions has been or may be used in the entrance and exit criteria / guidance for any special education programs within the Fall River Public School District.” Ms. King specifies that she is “requesting such documents that are dated between 1/1/2019 and the date this request is received.” The School responded on June 11, 2021, noting that one responsive record had previously been provided, and claiming to withhold others pursuant to Exemption (d) of the Public Records Law. Unsatisfied with the School’s response, Ms. King 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). 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 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

Debra Cabral SPR21/1780 Page 2 August 2, 2021 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. Current Appeal In her appeal petition, Ms. King questions whether the School’s “response [complies] with the relevant regulations” for public records access. The School’s June 11th Response In its June 11, 2021 response, the School claims to withhold responsive records pursuant to Exemption (d) of the Public Records Law. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). The School identifies a number of documents being withheld pursuant to Exemption (d). First, the School explains that “a draft of the program description and exit and entrance criteria of the District’s Neurodiverse program, was previously provided to” Ms. King. The School goes on to explain that “further drafts of the Neurodiverse program exit and entrance criteria are being withheld at this time, as these draft documents are exempt from disclosure

Debra Cabral SPR21/1780 Page 3 August 2, 2021 under the deliberative process exemption. M.G.L. c. 4, § 7(26)(d). The Fall River Public Schools is undertaking a deliberative process to draft a final Neurodiverse program exit and entrance criteria for future use; the process is currently ongoing.” In a phone conversation with this office on July 21, 2021, an attorney for the School explained that an early draft of the program description and exit and entrance criteria of the Neurodiverse program was shared with parents, and a copy of that draft was previously provided to Ms. King. Subsequent drafts, as described in the School’s response, have been shared only internally within the School. In addition, the School explains that “[a]dditional program descriptions and exit and entrance criteria are currently being drafted for the District’s Language-Based program and Social Emotional program. These documents are being withheld at this time, as these draft documents are exempt from disclosure under the deliberative process exemption. M.G.L. c. 4, § 7(26)(d). The Fall River Public Schools is undertaking a deliberative process to draft final program descriptions and exit and entrance criteria for future use; the process is currently ongoing.” In the same July 21st phone conversation discussed above, an attorney for the School confirmed that all withheld drafts have been shared only internally within the School, and did not include communications sent to or received from third parties. To the extent the drafts at issue contain policy recommendations, they may be withheld or redacted. However, it is not clear whether the drafts may contain any factual information or information that does not constitute policy positions or recommendations that can be segregated and released. The School must clarify this. Please note that a change in the status of the deliberation may impact the applicability of Exemption (d). See M.G.L. c. 4, § 7(26)(d). Conclusion Accordingly, the School is ordered to provide Ms. King with a response to her 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 the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Marion J. King