Gerry Mroz v. Department of Elementary and Secondary Education (SPR 20213037)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2021 SPR21/3037 Helene Bettencourt Records Access Officer Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148-4906 Dear Ms. Bettencourt: I have received the petition of Gerry Mroz 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 August 16, 2021, Mr. Mroz requested “all communications or documents submitted to the Department of Elementary and Secondary Education, or anyone in its employ, produced by the Center for Talent Development at Northwestern University between January 1, 2021 and August 15, 2021.” Previous appeal This request was the subject of a previous appeal. See SPR21/2827 Determination of the Supervisor of Records (November 4, 2021). The Department had provided a response on November 4, 2021. Unsatisfied with the Department’s response, Mr. Mroz petitioned this office and this appeal, SPR21/3037, 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 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, RAO SPR21/3037 Page 2 December 2, 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 November 4th response In its November 4, 2021 response, the Department stated “[w]ith respect to the records related to the Department’s Acceleration policy, the Department maintains that such records are exempt under the Deliberative Process Exemption to the Public Records Law, G.L. c. 4, §7(26)(d).” 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). In its November 4th response, Department stated it “produced to Mr. Mroz the feedback and recommendations provided by Gifted and Talented Advisory Council members and will be producing by November 5, 2021, research materials contained within the Box.com account. These records constitute the factual information on which the Department is basing its policy. What remains are internal email, memoranda, and draft proposals which are the subject of collaboration, deliberation, and scrutiny as part of the policy development process.” The Department further explained, “[t]he Deliberative Process exemption applies to, ‘inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.’ G.L. c. 4, §7(26)(d). This is exactly what remains, and the Department cannot

Helene Bettencourt, RAO SPR21/3037 Page 3 December 2, 2021 share these records until the Board of Elementary and Secondary Education has reviewed and voted on the policy in question.” Based on the Department’s November 4th response, I find the Department has not established if records produced by the Center for Talent Development at Northwestern University submitted to the Department are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Mroz 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Gerry Mroz Thomas Zorich