Michael DiPronio v. Department of Elementary and Secondary Education (SPR 20212018)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 24, 2021 SPR21/2018 Helene Bettencourt Associate Commissioner Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148-4906 Dear Ms. Bettencourt: I have received the petition of Michael DiPronio 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). On July 11, 2021, Mr. DiPronio requested, “copies of the latest Special Education Program Plan Statements” from a number of school districts. Prior Appeal The requested records were the subject of a prior appeal. See SPR21/1894 Determination of the Supervisor of Records (August 6, 2021). In my August 6th determination, I ordered the Department to produce a response to Mr. DiPronio. On August 6th, the Department provided a response to Mr. DiPronio. Unsatisfied with the Department’s response, Mr. DiPronio petitioned this office and as this appeal, SPR21/2018, was opened as 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 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 SPR21/2018 Page 2 August 24, 2021 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 August 6th response In its August 6th response, the Department stated, “…[w]e are providing a blank Special Education Program Plan Statement (SEPPS) with a list of the districts you requested and the status of their latest submission. Districts submit the SEPPS on a cohort schedule. Information about the cohort schedule can be found here.” Current Appeal In his current appeal, Mr. DiPronio, suggested that there are additional records responsive to his request. Based on the Department’s response, it is unclear if it possesses additional records responsive to the above request. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. DiPronio with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Michael DiPronio