Ben Tobin v. Department of Elementary and Secondary Education (SPR 20212875)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 10, 2021 SPR21/2875 Helene Bettencourt Associate Commissioner Commissioner’s Office Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 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). On October 22, 2021, Mr. Tobin requested, “… the policies and procedures for special education. Per the IDEA Part B (to be eligible for funds the LEA must meet the conditions in 300.101 through 300.163 and 300.165-300.17 4. The conditions under 300.220 require all LEAs to have in effect policies, procedures, and programs that are consistent with state policies and procedures. I would like those specific policies at the state level listed in the IDEA as a requirement.” On October 27, 2021, the Department responded. Unsatisfied with the response, Mr. Tobin petitioned this office and this appeal, SPR21/2875, 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 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 SPR21/2875 Page 2 November 10, 2021 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 October 27th response In its October 27th response, the Department stated, “[t]he records in your request are posted here: Policy and Guidance - Special Education (mass.edu) and the monitoring toolkit is posted here: District Resources - Office of Public School Monitoring (PSM) (mass.edu).” Based on the Department’s response, in conjunction with Mr. Tobin’s appeal it is unclear if the Department possesses any additional records responsive to the request. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. Tobin with a response to the 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. Mr. Tobin may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ben Tobin