Joshua Dankoff v. Collaborative for Educational Services (SPR 20240161)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 1, 2024 SPR24/0161 Arthur B. Scott Records Access Officer Collaborative for Educational Services 97 Hawley Street Northampton, MA 01060 Dear Mr. Scott: I have received the petition of Joshua Dankoff, of Citizens for Juvenile Justice, appealing the response of the Collaborative for Educational Services (Collaborative) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On October 13, 2023, Mr. Dankoff requested, “…the most recent SEIS Student Staff Comparison report available, ideally from September or October 2023.” The Collaborative responded on October 16, 2023, and on November 28, 2023. Unsatisfied with the response, Mr. Dankoff petitioned this office and this appeal, SPR24/0161, 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. See 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. 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

Arthur B. Scott SPR24/0161 Page 2 February 1, 2024 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. The Collaborative’s October 16th and November 28th responses In its October 16, 2023 response, the Collaborative stated, “I wanted to share the response received from SEIS in response to your inquiry on Friday: ‘Our data team is working on finalizing the September Student Staff Comparison report. We cannot provide October because October is not over yet. I will send you the September report as soon as it is available.’” On November 28, 2023, the Collaborative advised, “I just realized I have dropped the ball on getting you this information. I’m sorry. It was only an oversight. I may be able to get it to you later today; otherwise it will probably Thursday [sic] because I am traveling tomorrow.” Current Appeal In his appeal, Mr. Dankoff stated, “I write to appeal the denial of public records from the Collaborative for Educational Services[…] The request is for a report that is created monthly and that I have requested and received in the past from CES. I have called multiple times and sent numerous email follow ups.” Mr. Dankoff further stated, “…at this point let’s have September and October.” Mr. Dankoff also stated, “[i]f the November report is now available, please include that.” Records in Existence 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 his appeal petition, Mr. Dankoff includes a request for the November report. Where the November report was not included in his original October 13th request, Mr. Dankoff may make a new request for this report. If Mr. Dankoff is dissatisfied with the response to said request, he may file an appeal within 90 days. See 950 C.M.R. 32.08(1). Timeliness of providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public

Arthur B. Scott SPR24/0161 Page 3 February 1, 2024 records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas Mr. Dankoff’s request was submitted on October 13, 2023, and the Collaborative has not provided the responsive records, I find the Collaborative has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Collaborative must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Collaborative is ordered to provide Mr. Dankoff 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Joshua Dankoff