Brian Keaney v. Dedham, Town of - Public Schools (SPR 20240780)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 27, 2024 SPR24/0780 Ian P. Kelly, Ed.D. Deputy Superintendent Dedham Public Schools 100 Whiting Avenue Dedham, MA 02026 Dear Dr. Kelly: I have received the petition of Brian Keaney appealing the response of the Dedham Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 28, 2023, Mr. Keaney requested “…a summary document or analysis showing the average score and SGP in each classroom in each school or around the district.” Prior Appeals The requested records were the subject of prior appeals. See SPR23/2787 Determination of the Supervisor of Records (December 4, 2023), SPR23/2993 Determination of the Supervisor of Records (December 28, 2023), and SPR24/0471 Determination of the Supervisor of Records (February 27, 2024). In my February 27, 2024 determination, I directed the School to clarify if it possessed additional records. The School provided a response on March 13, 2024. Unsatisfied with the response, Mr. Keaney petitioned this office, and the current 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); 950 C.M.R. 32.06(3); see also Dist. 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

Dr. Ian Kelly SPR24/0780 Page 2 March 27, 2024 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. Current Appeal In his appeal, Mr. Keaney asserts that, “…Dr. Kelly has in the past provided me with other documents that make it clear that there are, in fact, documents that are responsive to my request. In my email to him from a few moments ago, I referenced the Greenlodge slide deck. Dr. Kelly provided it to me on January 29, 2024, and I am now attaching it to this email for your reference. Dr. Kelly is now claiming that those documents do not exist. I am thus appealing to you but, as I told him, would be very happy to have another conversation with him to clarify my requests.” The School’s March 13th response In its March 13, 2024 response, the School states, “…[c]ompliance with the [statute] requires disclosure of records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. There are no records in existence that are responsive to your initial and subsequent requests … I have exercised due diligence and conducted a thorough inquiry into what, if any, responsive records were in the possession, custody, or control of the District at the time of your request. There are no records in existence that are responsive to your initial [and] subsequent requests.” The School further stated, “I have conferred with all building leaders and department heads and they have confirmed that item analysis data, the information you received on February 26th, is the data teachers are provided to conduct their analysis of student achievement and performance. To clarify, as stated in the District’s previous responses to your request, the District is not in possession of any records that are responsive to your request for a data report including, by teacher, the average growth percentile (SGP) for students in each teacher’s class. I have pointed out in the past to DESE’s school and district profiles website on which you will find a wealth of information about the SGP performance for our schools. As I stated in the past, this data is a reasonable approximation of the information you are looking for. I encourage you to use and review this information.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public

Dr. Ian Kelly SPR24/0780 Page 3 March 27, 2024 employee is not required to answer questions, or do research, or create documents in response to questions. See 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 at the time of the request. See G. L. c. 66, § 10(a)(ii). Based on the March 13th response, the School confirmed it does not possess any additional records responsive to the request. The School has no duty to create records in response to Mr. Keaney’s request. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Keaney 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 of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Brian Keaney