Marion J. King v. Fall River, City of - Public Schools (SPR 20212006)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 20, 2021 SPR21/2006 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.” Further, Ms. King specifies that she is “requesting such documents that are dated between 1/1/2019 and the date this request is received.” Previous Appeal This request was the subject of a previous appeal. See SPR21/1780 Supervisor of Records Determination (August 2, 2021). In my August 2nd determination, I ordered the School to clarify whether the responsive records contained any factual information that could be segregated and released. Subsequently, the School provided a written response on August 6, 2021, including responsive records in redacted form. 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). 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 SPR21/2006 Page 2 August 20, 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. Current Appeal In her appeal petition Ms. King states that she “asked for factual studies on which the deliberations are being based.” She questions whether the School is “deliberating in the absence of such studies.” The School’s August 6th Response In its August 6, 2021 response, the School provided one responsive record in redacted form, and stated it was withholding others 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).

Debra Cabral SPR21/2006 Page 3 August 20, 2021 Under Exemption (d), concerning the redactions in “a further draft of the Neurodiverse program exit and entrance criteria,” the School argues the following: 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. The redacted portions of the latest draft of the exit and entrance criteria for the District’s Neurodiverse program contains policy recommendations which are being drafted to aid special education IEP Team members in recommending specific programming for individual students. Concerning the records being withheld in their entirety, the School argues the following: [A]dditional program descriptions and exit and entrance criteria are currently being drafted for the District’s Language-Based program and Social Emotional program. . . 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. There is no factual information or information that does not constitute policy recommendations contained within the drafts for the Language-Based and Social- Emotional programs which can be segregated and released; therefore the drafts continue to be withheld in their entirety. Where the School has explained that the redacted and withheld records contain no factual information beyond what has already been provided, and where the School previously confirmed that all withheld and redacted drafts have been shared only internally within the School, I find the School has met its burden at this time to redact and withhold the records pursuant to Exemption (d) of the Public Records Law. A change in status of the policy deliberations may affect the applicability of this exemption. Records in Existence 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). In its August 6th response, the School explains that “[u]pon information and belief, there are no other responsive documents to [Ms. King’s] requests within the possession, custody, or control of the Fall River Public Schools.” Further, in a phone conversation with this office on August 12, 2021, an attorney for the School confirmed that no additional responsive records exist. In particular, no specific studies were undertaken as part of the policy development process. Where the School has confirmed that no additional responsive records exist, I find the

Debra Cabral SPR21/2006 Page 4 August 20, 2021 School has met its burden in responding to Ms. King’s request for public records. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. King 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Marion J. King