Commonwealth Transparency v. Division of Administrative Law Appeals (SPR 20221149)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 25, 2022 SPR22/1148; SPR22/1149 Edward McGrath, Esq. Chief Administrative Magistrate Division of Administrative Law Appeals 1 Congress Street, 11th Floor Boston, MA 02114 Dear Chief McGrath: I have received the petitions of Commonwealth Transparency appealing the response of the Division of Administrative Law Appeals (Division) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 26, 2022, Commonwealth Transparency requested: Any and all raw data in any format…which support, detail, or provide substantive data published in the attached “published documents” for the following specific information: a. All documents substantiating the number of hearing requests filed by parents. b. All documents substantiating the number of hearing requests filed by schools/districts. c. All entries/notices of appearance(s) filed by attorneys representing schools/districts. d. All entries/notices of appearance(s) filed by attorneys representing parents… f. All documents substantiating any party refuses mediation… j. All documents substantiating “parents fully prevailed” k. All documents substantiating “school districts fully prevailed” l. All documents substantiating “mixed relief was granted.” That same day, Commonwealth Transparency also requested, “for the time period January 1, 2008 through the date you respond with all responsive documents, please provide… [a]ny and all calendaring documents including electronic calendars of the BSEA director.” The Division provided responses on May 6, 2022, May 16, 2022 and May 20, 2022. Unsatisfied with the 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

Edward McGrath, Esq. SPR22/1148; SPR22/1149 Page 2 May 25, 2022 substantive nature of the Division’s responses, Commonwealth Transparency petitioned this office and these appeals, SPR22/1148 and SPR22/1149, 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 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. 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 Division’s Responses Request #1 On May 6, 2022, the Division provided a timeline in which it would produce responsive records. On May 16, 2022, the Division provided responsive records to the requestor. With respect to categories a, b, c, d, and f of Commonwealth Transparency’s request, the Division provided redacted spreadsheets. In response to the Division’s May 16, 2022 response, Commonwealth Transparency stated: As to request item a. – The actual hearing requests are responsive and were not provided. As to request item b. – The actual hearing requests are responsive and were not provided. As to request item c. – The actual notices or appearance and/or the first filing by the attorney(s)/firm(s) are responsive and were not provided. As to request item d. – The actual notices or appearance and/or the first filing by the attorney(s)/firm(s) are responsive and were not provided. As to request item f. – The actual communications refusing mediation are responsive and were not provided. As to request item j. – The actual determinations are responsive and were not provided. As to request item k. – The actual determinations are responsive and

Edward McGrath, Esq. SPR22/1148; SPR22/1149 Page 3 May 25, 2022 were not provided. As to request item l. – The actual determinations are responsive and were not provided. In addition, the…spreadsheets provided are…labeled as “redacted.” No exemptions were specified… On May 20, 2022, the Division stated: [With respect to categories a and b of the request], the [Division] refuse[s] to provide [actual hearing request forms] raising G.L. c. 4, § 7 (26)(a), 20 U.S.C. § 1415(b)(7)(A); 34 C.F.R. §§ 300.50[7], 300.508, and Supervisor of Records Determination SPR22/0602 … [With respect to categories c and d of the request], the [Division] refuse[s] to provide [notice of appearances or first filings]. Obtaining copies of the thousands of appearances filed during a 14-year period, copying them, redacting them, and providing them would be impossible. If the Supervisor of Records determines the notices of appearances should be provided, the agency asks the order also provide that the Requester shall pay the reasonable costs associated with complying with the order … [With respect to category f of the request], the [Division] object[s] and state[s that] it would be impossible to review all communications created in every case during a 14-year period searching for a party refusing mediation. [With respect to categories j, k, and l of the request, t]here is no document called “actual determination.” Regarding categories a and b of Commonwealth Transparency’s request, in SPR22/0602, the Supervisor has held that the Bureau of Special Education Appeals’ hearing request forms are exempt from disclosure pursuant to 20 U.S.C. § 1415(b)(7)(A) and 34 C.F.R. §§ 300.507, 300.508. See Supervisor of Records Determination SPR22/0602 (March 25, 2022). In light of this, I find that the Division may withhold the hearing request forms in their entirety. However, it is unclear whether additional records responsive to categories a and b exist. 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). The Division must clarify this. Regarding categories c, d, and f of Commonwealth Transparency’s request, it is unclear what exemption or legal basis under the Public Records Law the Division is claiming applies to withhold the responsive records from disclosure. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, §

Edward McGrath, Esq. SPR22/1148; SPR22/1149 Page 4 May 25, 2022 10(b)(iv). 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). As such, I find the Division has not met its burden to withhold this record from disclosure. Burden of specificity; duty to segregate The Division provided redacted records for categories a, b, c, d, and f but did not cite an exemption for the redactions. 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); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is unclear which exemption under the Public Records Law applies to the records. The Division must clarify this. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Commonwealth Transparency requested the records on April 26, 2022 and the Division provided Commonwealth Transparency with its initial response on May 6, 2022. Where the Division request permission to charge for time spent segregating and redacting records responsive to categories c and d, it is unclear whether the Division’s May 6, 2022 response complies with the requirements of G. L. c. 66, § 10(b). In order to assess fees for responsive records, the Division must demonstrate that it complied with G.L. c. 66, § 10(b). Please be advised, if the Division can demonstrate that it provided a proper response pursuant to G. L. c. 66, § 10(b), it may only charge for segregating and redacting information required by law. Regarding categories j, k, and l of Commonwealth Transparency’s request, the Division stated in a phone call with a staff attorney in the Public Records Division that it does not track data pertaining to hearing outcomes outside of final hearing determinations and that the entirety of its hearing determinations result in relief for parents, school districts, or both, respectively. The Division confirmed that it catalogues its final hearing determinations on its website. 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). Where the final hearing determinations are on the Division’s website, I find the basis of Commonwealth Transparency’s appeal unclear. Commonwealth Transparency is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f).

Edward McGrath, Esq. SPR22/1148; SPR22/1149 Page 5 May 25, 2022 Request #2 On May 6, 2022, the Division stated that it is withholding a responsive record pursuant to Exemption (e) of the Public Records Law. Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. In its appeal, Commonwealth Transparency stated: [The Division d]oes not address whether or not there is data in her official state issued electronic calendar. Did anyone else send her calendar entries or meeting requests? Second, the issue is not whether the calendar is kept on personal device or notebook, but whether the documentary materials or data was created or received by any officer or employee of the BSEA in this case. The request specifically seeks data in the form of calendar entries either made or received by officers and employees of the BSEA, calendar entries made by a BSEA employee in the employee’s official capacity are public records. The Division asserts that:

Edward McGrath, Esq. SPR22/1148; SPR22/1149 Page 6 May 25, 2022 The BSEA Director does not use an electronic calendar. A copy of the settlement log which might be responsive to this request has already been produced … To the extent this requestor seeks the Director’s personal calendar, the personal calendar will not be produced…The personal calendar was created by the Director to keep track of her appointments for both herself and her family…Moreover…[t]he Director created the personal calendar for her personal use. It is not maintained as part of the agency’s files and it is not shared with other employees. Where the Division stated that the Director’s personal calendar is used as an aid in scheduling personal and professional obligations, is not shared with anyone, and is not maintained as a part of a governmental file, I find the Division has met its burden in withholding the calendar pursuant to Exemption (e). In a telephone conversation with a staff attorney in the Public Records Division, the Division stated that it is working with the Executive Office of Technology Services and Security on obtaining data in the Director’s state-issued electronic calendar. Conclusion Accordingly, regarding Request #1, the Division is ordered to cite an exemption with specificity or provide records responsive to categories c, d, and f. Further, although the Division provided responsive records with redactions, the Division must cite with specificity which exemption applies and why it applies to the records. To the extent that the Division seeks to charge for time spent segregating and redacting records responsive to Request #1, the Division must demonstrate how its May 6, 2022 response satisfies the requirements of G. L. c. 66, § 10(b). Regarding Request #2, the Division must provide a response pertaining to whether it possesses data in the Director’s electronic calendar. In light of the above, the Division is ordered to provide a response in accordance with the Public Records Law, its Regulations, and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Commonwealth Transparency may appeal the substantive nature of the Division’s response within ninety days. See 950 C.M.R. 32.08(1).

Edward McGrath, Esq. SPR22/1148; SPR22/1149 Page 7 May 25, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency