Brian Keaney v. Department of Elementary and Secondary Education (SPR 20232786)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 1, 2023 SPR23/2786 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 Brian Keaney 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 6, 2023, Mr. Keaney sent the following email to the Department: [a]ttached is a document that shows some MCAS scores from a single classroom in Dedham last year. I would like to request under the Public Records Law a similar report for every classroom in the Dedham Public Schools at every grade level tested for the most recent year available. I expect the student names will be redacted, but if it could be provided in a machine readable format or in a format where I can manipulate the data it would be greatly appreciated. Also, if such data or document exists, I would like to request a copy of any document that shows the average student growth percentile in each classroom. On November 16, 2023, the Department provided Mr. Keaney with a response, asserting: [p]lease be advised the Department has no specific record that responds to your request. Creating such a record is not required under the Massachusetts Public Records Law and risks violating students’ rights to privacy. To share statewide information about students’ results on MCAS, the Department annually creates research files that contain data about students’ performance that are aggregated in ways that will not permit identifications of specific students … The research files made available by the Department include de-identified information about students’ performance on MCAS on the level of the state, district, school [and] grade … Presently, the Department possesses research files about MCAS administration in the 2021-2022 school year. You can use this link to request 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 SPR23/2786 Page 2 December 1, 2023 access . . . As a result of the Department’s November 16th response, Mr. Keaney petitioned the Supervisor of Records, and this appeal was opened. 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) (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 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. Current Appeal In his November 16th petition, Mr. Keaney asserts, “…the document I included as an example…clearly states at the bottom that it came from the [Department]. Even if this was the only report in existence, which I highly doubt, it would still be a document responsive to my request and should have been provided to me.” Subsequent to the opening of this appeal, on November 30, 2023, the Department provided Mr. Keaney with a supplemental response to his November 6th request. Conclusion Accordingly, where the Department provided a supplemental response on November 30th, I will consider this administrative appeal closed. Mr. Keaney may appeal the substantive nature of the Department’s November 30th response within ninety calendar days. 950 C.M.R. 32.06(1).

Helene Bettencourt SPR23/2786 Page 3 December 1, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Brian Keaney