Marion J. King v. Department of Elementary and Secondary Education (SPR 20220974)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 10, 2022 SPR22/0974 Helene Bettencourt Associate Commissioner Commissioner’s Office Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt: I have received the petition of Marion 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 various records relating to a report from a named public school. Previous appeals This request was the subject of previous appeals. See SPR22/0758 Determination of the Supervisor of Records (April 1, 2022) and SPR22/0758 Determination of the Supervisor of Records (April 15, 2022). On April 25, 2022, the Department responded. Unsatisfied with the Town’s response, Ms. King petitioned this office and this appeal, SPR22/0974, 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 agency or municipality 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. 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 SPR22/0974 Page 2 May 10, 2022 The Department’s April 25th response In its April 25th response, the Department stated, “… [a]s to the issue of dates, the Department has determined that, without identifying the student subject of the complaint, it can disclose that this intake was received on November 5, 2021. This should permit you to determine whether PRS fulfills its obligations under [the] regulations. Customarily, the Department redacts intake dates because, in some cases, they can lead to the identification of a student.” Current appeal In her appeal, Ms. King states, “I ask that the Public Records Division request that DESE provide the documents in question, redacted according to the law with an explanation to accompany those redactions as required.” Based on the Department’s response, it is unclear if the Department possesses any records responsive to the request. 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Department is advised that if withholding records a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Further, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). As a result, I find that the Department did not satisfy its burden in responding to this records request. Conclusion Accordingly, the Department is ordered to provide Ms. King 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. Ms. King may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Helene Bettencourt SPR22/0974 Page 3 May 10, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Marion King