Ben Tobin v. Department of Elementary and Secondary Education (SPR 20212746)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 22, 2021 SPR21/2745; SPR21/2746 Helene Bettencourt Records Access Officer Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt: I have received the petitions of Ben Tobin appealing the response of the Department of Elementary and Secondary Education (Department) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 19, 2021, Mr. Tobin requested, “the statistics for the total number of students in the commonwealth who are in approved private special education schools coming from public schools. I would also like the exact cost from the budget of how much is spent on approved private special education schools every year” as well “any records pertaining to the merging of OPPl's investigative arm with PRS and the rationale behind this decision (including any emails mentioning the topic). The Department responded on October 19, 2021. Unsatisfied with the response, on October 19, 2021, Mr. Tobin petitioned this office and these appeals were 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

Helene Bettencourt SPR21/2745; SPR21/2746 Page 2 October 22, 2021 After a telephone call between a Public Records Division staff member and a representative of the Department, it has come to my attention that the Department intends on meeting with Mr. Tobin to discuss his requests and plans on providing a response subsequently thereafter. I encourage Mr. Tobin and the Department to communicate in order to facilitate an efficient and affordable production of documents. Mr. Tobin may wish to include applicable time periods or factors to enable the search to be processed. G.L. c. 66, § 10(a)(i). Accordingly, I will consider these appeals closed. If unresolved issues remain, Mr. Tobin may file a further appeal with this office. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ben Tobin