Marina Villeneuve v. Department of Elementary and Secondary Education (SPR 20232630)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2023 SPR23/2630 Helene Bettencourt Records Access Officer Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt: I have received the petition of Marina Villeneuve, of Boston 25 News-WFXT, appealing the nonresponse of the Department of Elementary and Secondary Education (Department/DESE) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 13 and September 27, 2023, Ms. Villeneuve requested the following: [1.] Records from January 2000-present of [e]ducator license revocations, suspensions, denials, limitations Records should show the reasons why teacher licenses were revoked/ suspended/ denied/ limited (including whether for sexual misconduct) ... [2.] All records from 2000 to present of reports of sexual misconduct committed by school employees who do not hold an educator license... [3.] All records from 2000 to present of [r]eports from administrators who have dismissed, declined to renew, or obtained the resignation of a licensed educator for sexual misconduct [and] [r]ecords of sanctions to administrator licenses for failure to provided requested documents or information to DESE in connection with investigations of educator misconduct allegations. Previous Appeal This request was the subject of a previous appeal. See SPR23/2523 Determination of the Supervisor of Records (November 2, 2023). In my November 2nd determination, I closed SPR 23/2523 in light of the Department providing a response to Ms. Villeneuve on October 27, 2023. Unsatisfied with the Department’s response, Ms. Villeneuve further appealed, and this case was opened as a result. 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 SPR23/2630 Page 2 November 14, 2023 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. Att’y 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 October 27th Response In its October 27, 2023 response, the Department provides numerous charts which include, among other information, license holder names, license areas, actions taken, and dates of actions. Additionally, the Department states that “while DESE does not possess records that match the description in [the] request,” it has provided “copies of public records that DESE believes are most responsive to [the] request.” The Department goes on to explain the following: [C]hanges to the public records law and its exemptions have required adjustments to the way in which DESE collects, maintains, and produces to the public personal data and records about licensees on whom DESE has taken disciplinary action. While the investigatory files of individual licensees contain information about allegations, allegations frequently are subject to exemptions from the public records law. Again, for aggregate information about the actions DESE has taken on individuals’ licenses, DESE possesses only the attached. In her appeal petition, Ms. Villeneuve contends that she “requested that DESE provide individual teacher disciplinary records/correspondence if DESE couldn’t provide a summary of how many teachers have had their license sanctioned because of sexual misconduct.” She further contends that “DESE should immediately provide all teacher license disciplinary records from 2000 to present.” Additionally, she refers to similar records provided by the Department in response to past requests. The Department is advised that 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). Further, 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).

Helene Bettencourt SPR23/2630 Page 3 November 14, 2023 Based on the Department’s response, and the information provided in Ms. Villeneuve’s appeal, it is unclear whether the Department possesses additional records responsive to Ms. Villeneuve’s request. If the Department does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the Department is ordered to provide Ms. Villeneuve with a response to her request, provided 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Marina Villeneuve