Mary Kate McGowan v. Bristol County Agricultural High School (SPR 20222438)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 9, 2022 SPR22/2438 Adele Sands Superintendent Bristol County Agricultural High School 135 Center Street Dighton, MA 02715 Dear Superintendent Sands: I have received the petition of Mary Kate McGowan appealing the response of the Bristol County Agricultural High School (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 13, 2022, Ms. McGowan requested, “…Bristol County Agricultural’s policies and procedures for special education including those stemming from the SEPPS (special education program plan statement).” The School provided a response on September 29, 2022. Unsatisfied with the School’s response, Ms. McGowan petitioned this office and this appeal, SPR22/2438, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). If there are any fees associated with a response a written, good faith estimate must be 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

Superintendent Adele Sands SPR22/2438 Page 2 November 9, 2022 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 Department’s September 29th Response In its September 29, 2022 response, the Department stated, “[a]ttached is a presentation which was done last year. In addition to parent rights it also included quite a bit of information including the districts policies and procedures. In addition we had an independent special education evaluation last year. We also completed last years TFM with no findings of correction.” Current appeal In her appeal, Ms. McGowan stated that, “… [the School] sent me [a] slide show and not the policies and procedures I requested.” In light of the claims made by Ms. McGowan, it is unclear if the School possesses additional records that may be responsive to her request. Specifically, the School must clarify whether it possesses the actual policies and procedures for special education as requested. 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). To the extent that additional records exist, I find the School must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the School is ordered to provide Ms. McGowan 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. Sincerely, Manza Arthur Supervisor of Records cc: Mary Kate McGowan