Marion J. King v. Department of Elementary and Secondary Education (SPR 20220843)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 25, 2022 SPR22/0843; SPR22/0915 Helene Bettencourt Records Access Officer Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt: I have received the petitions of Marion J. King 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 March 20, 2022, Ms. King requested twenty-nine identified letters of finding. The Department provided a response and fee estimate on March 31, 2022. Unsatisfied with the substantive nature of the Department’s response, Ms. King petitioned this office and these appeals, SPR22/0843 and SPR22/0915, were 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. 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. 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 SPR22/0843; SPR22/0915 Page 2 April 25, 2022 The Department’s March 31st Response On March 31, 2022, the Department stated: The Department estimates that the records you requested will require approximately 20 hours to search for, to segregate, and to prepare for production. If you wish us to continue processing your request, please send a check to my attention, made payable to “The Commonwealth of Massachusetts,” in the amount of $400.00. Current Appeal On April 10, 2022, Ms. King stated: [T]he DESE/PRS estimate of 20 hours for 29 documents, all of which were authored and issued by DESE in the month of February 2022 and all of which apparently decline to investigate a complaint and therefore likely contain very few details which need to be redacted, is likely to be largely overestimated. If each document takes a full 5 minutes to redact the contact information of the recipient and a few minor details, the process will total fewer than three hours. On April 16, 2022, Ms. King also stated: We have a concern about an agency's non-compliance with the requirements of Ch. 66 sec 19(b)(i)… Given that MA DESE is in fact a state "agency", they are required to publish copies of those PRS complaint decisions (redacted as required under the law) on an accessible, searchable website. They do not. In fact, on March 20, 2022, I requested a small subset of the many decisions that are issued annually and was asked to send a check for $400 for those public records (see attached). We ask that the Secretary of State's office issue a letter instructing MA DESE to come into compliance with this requirement within a brief period of time and that once it is operational, at least two years of historical records be made available. However, on April 20, 2022, Ms. King stated, “upon reflection, please withdraw my appeal on the $400 fee, leaving only the question of noncompliance with the requirements of the law regarding publication of decisions.” In light of the partial withdrawal, I decline to address the issues related to the Department’s fee estimate in this determination letter. If Ms. King wishes to submit an additional public records request to the Department in the future, and is unsatisfied with the Department’s response, she may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). -- Regarding Ms. King’s other appeal issue, in compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A(a). Given that no violation of G. L. c. 66, § 10 has been asserted

Helene Bettencourt SPR22/0843; SPR22/0915 Page 3 April 25, 2022 by Ms. King regarding this respective request, I am unable to issue a determination on this matter at this time. However, please be aware that pursuant to G. L. c. 66, § 19(b): Every agency shall provide on a searchable website electronic copies, accessible in a commonly available electronic format, of the following types of records, provided that any agency may withhold any record or portion thereof in accordance with state or federal law: (i) final opinions, decisions, orders, or votes from agency proceedings. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. King 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Marion King