Marion J. King v. Department of Elementary and Secondary Education (SPR 20241151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2024 SPR24/1151 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 Marion King 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 March 17, 2024, Ms. King stated, “I would like to receive a phone call please from the office of the Records Access Officer or someone designated to respond to inquiries in relation to the ServiceNow system. I am looking for information but I am unsure about how to word my request and need assistance.” The Department responded on April 5, 2024. Unsatisfied with the response, Ms. King petitioned this office and this appeal, SPR24/1151, 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. 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

Helene Bettencourt SPR24/1151 Page 2 May 1, 2024 The Department’s April 5th Response In its April 5, 2024 response, the Department stated, “[a]ccording to our records, [Ms. King has] successfully filed many requests for public records. Recently, [she has] filed requests for records and data related to the ServiceNow system and have been provided data and records in response. [Ms. King was] also provided a link to the state’s ServiceNow tutorial website. Based on this, we believe the process is clear for requesting clearly described records, including requests for data.” Subsequent to the opening of this appeal, on April 24, 2024, the Department stated the following: Ms. King’s appeal concerns her alleged inability to request data she wishes to review and an inability to understand the types of data collected by the Department’s Problem Resolution System (“PRS”) that is stored in the ServiceNow system. As reflected in the numerous requests from Ms. King to which the Department has responded, Ms. King is well aware of how to access public records, including PRS data. As recently as late March 2024, Ms. King has requested and received PRS data related to over two thousand PRS complaints and a link to the ServiceNow tutorial website so that she can conduct her own research as to the system’s uses and capabilities. The Department has and will continue to respond to requests from Ms. King for public records; however, the Department is aware of no obligation under the Public Records Law that would require it to discuss or otherwise create a technical assistance guide for Ms. King related to the internal systems utilized by the Department. A menu of data options contained in the PRS ServiceNow system that may be available for production in response to a public records request does not presently exist. Current Appeal In her appeal petition, Ms. King states, “DESE issued a response which in essence was a refusal of my request. Even though I expressed a need to have a conversation to be able to submit my request properly, [the Department] independently decided that my stated need did not require DESE to provide me with the requested phone call.” Subsequent to the opening of this appeal, on April 24, 2024, Ms. King sent an email to this office which stated, “[t]he ServiceNow tutorial was not accessible as I do not have the ability to login… Further, I ask that DESE provide guidelines that enable a person (such as myself) seeking access to public records in the custody of the agency or municipality to make informed requests regarding the availability of such public records electronically or otherwise.”

Helene Bettencourt SPR24/1151 Page 3 May 1, 2024 No Duty to Answer Questions; Conduct Research Ms. King is advised that 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). 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). Where Ms. King stated that she “would like to receive a phone call… from the office of the Records Access Officer[,]” I find the Department has no duty under the Public Records Law to answer such a request. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. King wishes to submit a request for public records to the Department and is unsatisfied with the response, she may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Marion J. King