Rachael Devaney v. Massachusetts Department of Early Education and Care (SPR 20240529)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 1, 2024 SPR24/0529 Stephany G. Collamore, Esq, Assistant General Counsel Massachusetts Department of Early Education and Care 50 Milk Street, 14th floor Boston, MA 02109 Dear Attorney Collamore: I have received the petition of Rachael Devaney, of the Cape Cod Times, appealing the response of the Massachusetts Department of Early Education and Care (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 22, 2024 Ms. Devaney requested the following records: [1.] All complaints made against Star Preschool or Little Stars Learning Center or Little Stars or its employees, including but not limited to complaints filed by members of the public and full/part-time staff and contractors[.] [2.] All materials, written or recorded, including calls, virtual meetings, emails and text messages related to investigations of Star Preschool or Little Stars Learning Center or Little Stars by the Department of Early Education and Care or EEC. The Department responded on February 5, 2024. Unsatisfied with the Department’s response, Ms. Devaney petitioned this office and this appeal, SPR24/0529, was opened as a result. On February 21, 2024, the Department provided a supplemental response. 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

Stephany G. Collamore, Esq. SPR24/0529 Page 2 March 1, 2024 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. 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 Department’s February 5th and February 21st responses In its February 5, 2024 response, the Department advised, “EEC is still currently in the process of gathering, compiling and reviewing the materials pertaining to your request. In accordance with Public Records law, EEC expects to transmit a response to you by February 12, 2024, which is fifteen business days following EEC’s receipt of your request. See G.L. c. 66, §10 (b)(vi).” In its February 21, 2024 response, the Department stated, “EEC has collected documents responsive to the request at issue and is in the process of finalizing these documents for production to the requestor. This process is close to complete and EEC has every intent of complying with the request and producing the records.” 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 records and for a 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). Where it appears Ms. Devaney submitted her request on January 22, 2024, it is unclear why the Department has not provided the responsive records. 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

Stephany G. Collamore, Esq. SPR24/0529 Page 3 March 1, 2024 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Department is ordered to provide Ms. Devaney with a response to her 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. Ms. Devaney may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Rachel Devaney