Sky Kochenour v. Department of Elementary and Secondary Education (SPR 20221786)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2022 SPR22/1786 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 Sky Kochenour, Esq., of the Center for Law and Education, appealing the response of the Department of Elementary and Secondary Education (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 22, 2021, Attorney Kochenour requested four (4) categories of records and data from the period of April 1, 2021 until November 22, 2021. On December 7, 2021, Joshua A. Varon, Associate General Counsel in the Department, acknowledged the request, and indicated, “the Department will produce the records [Attorney Kochenour has] requested as soon as possible but, for some items, will require clarification and modification of the scope of the request to facilitate more efficient and affordable production…” Despite communication between the parties, after not receiving all the responsive records, Attorney Kochenour petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Prior appeal The requested records were the subject of a prior appeal. See SPR22/0546 Determination of the Supervisor (March 11, 2022). The Supervisor closed SPR22/0546 based on the Department’s indication that it would contact Attorney Kochenour regarding the request, and provide Attorney Kochenour with a written response. 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 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 SPR22/1786 Page 2 August 15, 2022 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). The Department’s production of records The Department provided copies of responsive records on May 4, 2022 and June 13, 2022. However, on August 2, 2022, Attorney Kochenour contacted the Supervisor, reporting that he did not receive all the records he requested. In his August 2nd petition, which Attorney Kochenour also provided to the Department, Attorney Kochenour listed his (4) itemized requests and the records that he did not receive, and expected that he would receive. Request #1 I requested “[a]dmission policies submitted by individual schools, local school districts, and regional school districts to [the Department] pursuant to 603 C.M.R. § 4.03(6) including all versions where more than one is submitted (e.g., drafts or revisions)”. On March 10, 2022, in its response to the Appeal the Department stated that “Copies of admissions policies and draft policies in the possession of the Department that respond to item #1 of the request will be produced….” Production from the Department on May 4 and June 13, 2022, contained only 19 of 79 total admissions policies and is therefore not responsive to the plain language of Request #1. Request #2 I requested “[a]ll requests to the Department by individual schools, local school districts, and regional school districts to be permitted to comply with the terms of 603 C.M.R. § 4.03(6) in any way other than as written in the regulation (e.g., requests for waivers) and the Department’s response to all such requests”. On March 10, 2022, in its response to the Appeal the Department stated that it “will provide all requests for waivers, as described in item #2 of the request, by Monday, March 14, 2022”. Production from the Department on May 4 and June 13, 2022, did contain waiver requests and the Department’s related responses. To the extent these records constitute all waiver requests and responses consistent with the plain language of the Request then I believe the Department’s production is responsive to Request #2. Request #3 I requested “All related and/or supporting documents, data, and correspondence in any written form concerning students admissions to career/vocational and technical education schools and programs, regardless of whether transmitted simultaneously with, before, or after submission of the any admissions policies pursuant to 603 C.M.R. § 4.03(6), including, but not limited to, documents and data demonstrating that submitted admissions policies comply with 603 C.M.R. 4.00 and the Vocational Education Programs Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National Origin, Sex and

Helene Bettencourt SPR22/1786 Page 3 August 15, 2022 Handicap, received or sent by the Department from or to individual schools, local school districts, or regional school districts.” In its March 10, 2022, response the Department indicated that it would produce the following as to Request #3: “Email, documents, and data from [3 named individuals] discussing the process by which CVTE schools/programs updated admissions policies to comply with the amended regulations at 603 CMR. §4.03(6). This includes: • Requests for technical assistance and the Department’s responses • CVTE schools’/programs’ submission of admission policies to the Department • Requests for deadline extensions along with the Department’s responses • Internal Department communications concerning each of the above-listed topics, as sent or received by Ms. Bennett, Mr. Chuang, or Commissioner Riley.” I understood the four bulleted points provided by the Department preceded by “[t]his includes” to be non-exhaustive examples of allegedly responsive records. Documents the Department should have produced given the plain language of Request #3 included but were not limited to: 1. All related and/or supporting documents, data, and correspondence in any written form discussing CVTE schools/programs updating their admissions policies to comply with the amended regulations at 603 CMR. §4.03(6) received or sent by [3 named individuals] from or to individual schools, local school districts, or regional school districts; 2. Information both about the process by which CVTE schools/programs updated their admission policies and the data and information considered by CVTE schools/programs and the Department in going through the process and actually updating admission policies; 3. Documents, data, and information CVTE schools/programs and the Department considered in determining whether proposed and final criteria used in admission policies have the effect of disproportionately excluding students in protected populations; 4. Documents, data, and information CVTE schools/programs and the Department considered in determining whether CVTE schools/programs prior to their use demonstrated that any criteria that have the effect of disproportionately excluding students in protected populations are essential to participation and no equally valid, less discriminatory alternatives were available;

Helene Bettencourt SPR22/1786 Page 4 August 15, 2022 Production from the Department on May 4 and June 13, 2022, addressed some, but not all, of these topic areas. For instance, the Department did not produce any documents, data, and information CVTE schools/programs and the Department considered in determining whether proposed and final criteria used in admission policies have the effect of disproportionately excluding students in protected populations. Nor did the Department produce documents, data, and information CVTE schools/programs and the Department considered in determining whether CVTE schools/programs prior to their use demonstrated that any criteria that have the effect of disproportionately excluding students in protected populations are essential to participation and no equally valid, less discriminatory alternatives were available. In addition, the Department’s response from March 10, 2022, did not appear to and its subsequent production by and large did not address production of any records related to the regulatory process that led to the Board of Elementary and Secondary Education approving amendments to 603 C.M.R. § 4.03(6) on June 22, 2021. As the amendments to 603 C.M.R. § 4.03(6) changed the regulatory scheme for student admission to CVTE schools and programs information about the regulatory process falls squarely within the plain language of Request #3 (“All related and/or supporting documents, data, and correspondence in any written form concerning students admissions to career/vocational and technical education….”). Request #4 I requested “[a]ll related and/or supporting documents, data, and correspondence in any written form concerning students admissions to career/vocational and technical education schools and programs received or sent by the Department from or to Board of Elementary and Secondary Education members, Department personnel, or other offices or employees of the executive branch not within the Department.” On March 10, in its response to my Appeal to the [Supervisor], the Department stated that “[t]he Department’s response will respond to all four categories of Attorney Kochenour’s request” but did not provide any indication about how it planned to do so or what records it planned to produce in regard to Request #4. Responsive production to Request #4 would include, but not be limited to, the categories of information listed in sections (1) through (10) of the preceding section [Request #3] but pertaining to all related and/or supporting documents, data, and correspondence in any written form received or sent by the Department from or to Board of Elementary and Secondary Education members, Department personnel, or other offices or employees of the executive branch not within the Department as opposed to individual schools, local school districts, or regional school districts. Production from the Department on May 4 and June 13, 2022, largely did not contain responsive information, documents, and data from the non-exhaustive categories described above which the Department should have produced given the plain language of the [r]equest.

Helene Bettencourt SPR22/1786 Page 5 August 15, 2022 Diligent search; additional records 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). In accordance with the Public Records Law, 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). Where the Department provided some responsive records to Attorney Kochenour, it is unclear whether the Department conducted a diligent search for all the records responsive to his request. It is also unclear whether the Department is in possession of the records that Attorney Kochenour detailed in his request and in his August 2nd petition to the Supervisor. The Department must clarify the issues with records that were not provided. If the Department has additional responsive records, it must provide Attorney Kochenour with a production schedule, and provide the records on a rolling basis. I also encourage the parties to communicate in order to resolve the issues in this appeal. Conclusion Accordingly, the Department is ordered to provide Attorney Kochenour with a response to his requests in a manner consistent with 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Sky Kochenour, Esq., Center for Law and Education cc: Joshua A. Varon, Esq., Associate General Counsel, DESE

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