Marion J. King v. Department of Elementary and Secondary Education (SPR 20222280)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 14, 2022 SPR22/2280 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. See G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On July 31, 2022, Ms. King requested “…the web address where I can access a searchable database of electronic copies of PRS decisions in response to all complaints from 1/1/2021 to the date of your response.” Prior Appeals The requested records were the subject of prior appeals. See SPR22/1901 Determination of the Supervisor of Records (August 26, 2022) and SPR22/2101 Determination of the Supervisor of Records (September 28, 2022). In my September 28th determination, I found the Department intended on providing a further response to Ms. King and closed the appeal. On September 29, 2022, the Department responded. Unsatisfied with the Department’s response, Ms. King petitioned this office and this appeal, SPR22/2280, 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). 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 SPR22/2280 Page 2 October 14, 2022 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. The Department’s September 29th Response In its September 29, 2022 response, the Department advised, “… the Department wishes to make clear that, consistent with the Massachusetts Public Records Law, it will continue to respond to your public records requests as it has previously. On September 22, 2022, for example, the Department received three new requests from you seeking letters of closure and correspondence related to PRS compliance determinations. The Department is processing these requests and will respond within 10 business days. 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 must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Ms. King with a response to the request in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Marion King Joshua Varon, Esq.