Kathy Davidoff v. Department of Elementary and Secondary Education (SPR 20220643)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 1, 2022 SPR22/0643 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 Kathy Davidoff 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 February 23, 2022, Ms. Davidoff requested “…copies of all emails regarding [a named project]: sent to and from the Problem Resolution System (PRS), sent to and from Department of Elementary and Secondary Education (DESE), all internal emails of DESE, BSEA and PRS.” Prior Appeal The requested records were the subject of a prior appeal. See SPR22/0643 Determination of the Supervisor (March 17, 2022). In my March 17th determination I found that the Department provided a supplemental response to Ms. Davidoff and closed the appeal. Unsatisfied with the Department’s response, Ms. Davidoff petitioned this office and this appeal, SPR22/0643, 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. 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 SPR22/0643 Page 2 April 1, 2022 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. The Department’s March 17th response In the Department’s March 17th response, the Department provided an additional responsive record. Current Appeal In her current appeal Ms. Davidoff suggested that the Department had additional responsive records. In a telephone discussion with a staff member of the Public Records Division, a Department representative confirmed that all responsive records have been provided. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Where the Department does not possesses any additional records responsive to Ms. Davidoff’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Davidoff 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) Sincerely, .f) .A ~ ~ ~ - ~ 0 rw.J«M - Rebecca S. Murray Supervisor of Records cc: Kathy Davidoff