Ben Tobin v. Department of Elementary and Secondary Education (SPR 20211823)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 5, 2021 SPR21/1823 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” as well as “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 appeals This request was the subject of prior appeals. See SPR21/1461 and SPR21/1565 Determinations of the Supervisor of Records (June 23, 2021 and July 8, 2021). SPR21/1461 was closed after this office learned that the Department had provided Mr. Tobin with a supplemental response on June 22, 2021. 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 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 SPR21/1823 Page 2 August 5, 2021 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.” Unsatisfied with the Department’s June 22nd response, Mr. Tobin petitioned the Supervisor, and SPR21/1565 was opened. 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 my July 8th determination, and in light of the information asserted by Mr. Tobin in his June 23rd petition, I found that the Department must clarify whether it possesses responsive records. See SPR21/1565. Determination of the Supervisor (July 8, 2021). -- 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). Current appeal The Department provided a July 22, 2021 email response to the Supervisor’s July 8th determination. In its July 22nd response sent to Mr. Tobin, Department Attorney Joshua Varon asserts: I am writing to close the loop on the public records request that is the subject of appeal SPR21-1565…Recently, [Mr. Tobin] submitted the following three public records requests to the Department’s Public Records Center seeking MCAS results for approved private schools: - P001423-070521: Curtis Blake School’s MCAS results and then the Milestones Day School; - P001418-070121: White Oak’s MCAS results and then Dearborn;

Helene Bettencourt SPR21/1823 Page 3 August 5, 2021 - P001274-032121: MCAS results for the approved special education schools going from 2015-2019, etc. The Department has responded to each of these requests separately, but to make the matter clear, and to the extent there is an outstanding order requiring a response to these requests, the Department wishes to communicate that it has no records that responds to these requests… Given the degree of work required to compile the data [Mr. Tobin has] requested, the Department can say with certainty there currently exists no record matching the description in your public records requests. Based on the Department’s July 22nd response, I find that the Department has no record responsive to Mr. Tobin’s request. 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 addition, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). Conclusion Accordingly, where the Department has no record responsive to Mr. Tobin’s request, I will consider this administrative appeal closed. If Mr. Tobin is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ben Tobin Joshua A. Varon, Esq., DESE