Rose Caldarone v. Department of Elementary and Secondary Education (SPR 20240622)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2024 SPR24/0622 Helene Bettencourt Associate Commissioner Commissioner’s Office Department of Elementary and Secondary Education 135 Santilli Highway Everett, MA 02149 Dear Ms. Bettencourt: I have received the petition of Rose Caldarone 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 January 26, 2024, Ms. Caldarone requested: [1.] Regardless of location, all emails and corresponding documents between the complainant and DESE employees[;] [2.] Regardless of location, all emails between DESE employees and any employee, legal affiliate, or party related to Plymouth Public School District[;] [3.] Regardless of location, all emails between DESE employees, legal affiliates of DESE or parties related to DESE that were contacted pertaining to the initial investigation and then subsequent redetermination requested on PRS 10077 due to the inaccuracies in the determination summary[;] [4.] Regardless of location, any and all documentation that is filed or stored electronically related to and identifying PRS complaint 10077, its investigation and redetermination[;] [5.] Phone call logs or other records of zoom meetings and calls related to or containing discussion of PRS 10077[.] Previous Appeal The requested records were the subject of a previous appeal. See SPR24/0505 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 SPR24/0622 Page 2 March 12, 2024 Determination of the Supervisor of Records (February 28, 2024). In my February 28th determination, I learned that the Department provided a further response to Ms. Caldarone on February 27, 2024. Unsatisfied with the response, Ms. Caldarone petitioned this office and this appeal, SPR24/0622, 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(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. 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 27th Response In its February 27, 2024 response, the Department stated, “[p]lease find attached the records produced to Ms. Caldarone in response to her request for public records. The Department understands that Ms. Caldarone has appealed the response pursuant to a belief that the Department withheld records responsive to her request. Please be advised that beyond what has already been provided to Ms. Caldarone, the Department possesses no records responsive to her request.” Current Appeal In her appeal petition, Ms. Caldarone posed two questions and also stated: [1.] Can you speak on the next steps? [2.] If this is accurate, then DESE PRS provided consultation to a school district around a corrective action plan, without any type of documentation, including a phone log.

Helene Bettencourt SPR24/0622 Page 3 March 12, 2024 [3.] If this is accurate, then DESE PRS conducted an administrative review on a complaint summary that was reported for inaccuracies without any type of documentation. [4.] Is it unusual for a state entity not to record these types of formal communications in any manner? Based upon a telephone conversation on March 6, 2024 between a Public Records Division staff attorney and the Department, the Department confirmed that it possesses no further responsive records to this request. No Duty to Create Records Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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 of the time of the request. See G. L. c. 66, § 10(a)(ii). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Conclusion Whereas the Department does not possess any additional records responsive to Ms. Caldarone’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Caldarone is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Rose Caldarone