Gerry Mroz v. Department of Elementary and Secondary Education (SPR 20213296)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 3, 2022 SPR21/3296 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 appeals. See SPR21/2827 Determination of the Supervisor of Records (November 4, 2021); SPR21/3037 Determination of the Supervisor of Records (December 2, 2021). The Department had provided a response on December 14, 2021. Unsatisfied with the Department’s response, Mr. Mroz petitioned this office and this appeal, SPR21/3296, 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 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 SPR21/3296 Page 2 January 3, 2022 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); -se-e -a-ls-o 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s December 14th response In its December 14, 2021 response, the Department stated it, “produced to Mr. Mroz all described ‘communications or documents’ except for those related to the development of the Department’s ‘Acceleration policy’ to which, at this time, the deliberative process exemption applies. G.L. c. 4, §7(26)(d).” The Department explained that regarding the development of the Department’s Acceleration policy it “contracted for consulting services with the Northwestern University Center for Talent Development (NUCTD). Attached is a FY21 contract between the Department and NUCTD. According to this contract, the Department will pay $67,650 to NUCTD for supporting the Department ‘in identifying best practices for an effective and equitable Massachusetts-specific system of gifted education and talent development including a definition of giftedness, measures to assess giftedness, and policies and guidelines for gifted programs that use an equity lens and address opportunity and excellence gaps.’ The Acceleration policy in question includes the definition of giftedness as well as the other characteristics of the Massachusetts-specific system referred to in Mr. Mroz’s initial public records request.” In Mr. Mroz appeal to this office, he states, “[i]n the Dec. 14 response, DESE simply repeats a claim of the deliberative process exemption, despite the fact that the public records requested were created and/or delivered/produced by an external third party. As such, they are not inter-agency or intra-agency, within-government letters or memoranda. DESE attempts to assert that the intra-agency or inter-agency designation somehow applies to public records and communications with a third-party contracted "consultant" which is neither a Massachusetts governmental, nor a federal governmental entity.” 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).

Helene Bettencourt, RAO SPR21/3296 Page 3 January 3, 2022 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 addition to its December 14th response, Department explained that “[a]lthough NUCTD is a 3rd party that is independent from the Department, NUCTD and the Department are in a paid contractual relationship for deliverables that include, among others, ‘consulting,’ the production of a ‘written definition and related material’ and the production of ‘policy and related guidelines documents.’ As such, for this specific project, NUCTD constitute consultants hired by the Department and to which the Department has outsourced an institutional function. Memos to and from the Department and NUCTD, related to the development to this specific policy, constitute inter-agency memoranda as that term is used in the ‘deliberative process exemption.’ Until this policy is finalized, these memoranda and communications are properly exempt from production under the public records law.” The Department also provided a supplemental response on December 30, 2021. The Department stated it “with consultative support from Northwestern University’s Center for Talent Development (CTD), is developing a draft continuum of services for students with advanced learning needs. The draft continuum of services could potentially include an acceleration policy, as described in Mr. Mroz’s request, but no final decisions have been made regarding any aspect of the continuum. At this time, releasing inter-agency memoranda and correspondence about the policy would serve only to confuse and complicate the policy development process. Characterizing the Department as having presently developed or adopted a written “acceleration policy” is misleading; it inaccurately describes the Department’s records and the Departments policy development process.” Lastly, in the December 30th supplemental response the Department cited “in DaRosa v. City of New Bedford, 471 Mass 446, (2015), the Massachusetts Supreme Judicial Court was explicit that the deliberative process exemption applies to consultants working with the government exactly as CTD is working with the Department.” The Department concluded “[i]n its response, dated December 14, 2021, the Department provided records documenting the relationship between the Department and CTD, and clarifying in a scope of work that CTD has been hired to provide consulting services.” Where the requested records by Mr. Mroz are the type contemplated under Exemption (d), I find that the Department has met its burden under the Public Records Law.

Helene Bettencourt, RAO SPR21/3296 Page 4 January 3, 2022 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Mroz 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, ··. • .· - ~ I- l . . .. - . , Rebecca S. Murray Supervisor of Records cc: Gerry Mroz Thomas Zorich