Kathy Davidoff v. Department of Elementary and Secondary Education (SPR 20220215)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2022 SPR22/0215 Helene Bettencourt Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt: I have received the petition of Kathy Davidoff appealing the response of the Department of Elementary and Secondary Education (Department/DESE) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 23, 2022, Ms. Davidoff requested: Copy of all documents submitted for PRS 5522 Corrective Action “E”: “the District must examine a sample of four (4) initial evaluations or re-evaluations to ensure compliance with 603 CMR 28.05. Please report the name and title of the reviewer, the status of compliance and whether any additional corrective action was necessary. Because of student record confidentiality concerns, please submit ‘E’ to the Department only. Please submit corrective action E to the Department by November 1, 2021. The Department provided a response on January 25, 2022, indicating the responsive record is under review. Unsatisfied with the Department’s response, Ms. Davidoff petitioned this office and this appeal, SPR22/0215, was opened as a result. While this appeal was pending, the Department provided a supplemental response on February 2, 2022. 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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 SPR22/0215 Page 2 February 14, 2022 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. 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 January 25th and February 2nd responses In its January 25, 2022 response, the Department states that “. . . the CAP you have requested is still pending PRS review. You may direct any questions you have with [named individual] the PRS Supervisor involved with your case and the review of the CAP. Also, once the CAP has been reviewed by PRS, you will receive a Letter of Closure detailing the review of the CAP, as well as any determinations PRS has made.” In its February 2, 2022 supplemental response, the Department reiterated that the CAP remains under review. However, the Department provided a “. . . portion of the CAP requested concerning sample evaluations reviewed by Weston in response to PRS5522. You will find the name and title of the reviewer, status of compliance and whether any additional corrective action was required after the districts review.” Current appeal In her appeal petition, Ms. Davidoff states “DESE responded and released a one page doc that is a copy of an email and did not release corresponding documents to the email as requested. DESE has not fully released all documents as requested from records request on 1-23-22 (P0017140-012322) . . .” In light of the above, in conjunction with the Department’s responses, it is unclear what exemption under the Public Records Law the Department is claiming to withhold the responsive record from disclosure. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department must provide a detailed response to specifically explain how an exemption applies to withhold the requested records in compliance with the Public Records Law.

Helene Bettencourt SPR22/0215 Page 3 February 14, 2022 Conclusion Accordingly, the Department is ordered to provide Ms. Davidoff 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: Kathy Davidoff