Marion J. King v. Department of Elementary and Secondary Education (SPR 20241152)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2024 SPR24/1152 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 J. King appealing the response of the Department of Elementary and Secondary Education (DepartmentDESE) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 31, 2023, Ms. King requested: . . . all data available for all PRS complaints received beginning 9/1/2022 through today. Please include complaints that were rejected; that were resolved; and that have not yet been resolved. Please provide the data in a spreadsheet format … please see [attached] example of the scope of the information … please include [LEA compliance with Corrective Actions] as well. I am (again) requesting all available data from 9/1/2022 through 12/31/2023 in spreadsheet format. The Department responded on January 17, 2024. Unsatisfied with the response, Ms. King petitioned this office and this appeal, SPR24/1152, 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 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 SPR24/1152 Page 2 April 30, 2024 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. Current appeal In her appeal, Ms. King stated, “[o]n January 17, 2024, DESE replied that it had no responsive records.” The Department’s January 17th Response In its January 17th response, the Department stated: …whereas previously the Department had created the records you requested, the Department can no longer do this…Creating the records you have requested is more complicated than simply combining columns of data from existing spreadsheets. It requires access to a secure database, creating new business rules and search functions, and exporting a new data set that may require suppression and other measures to protect student privacy… the Public Records Law does not obligate the Department to create such records and, for this reason, the Department has no records that respond to your request. Subsequently the Department provided a response on April 25, 2024, and stated, “…on March 22, 2024 the Department provided Ms. King with a spreadsheet containing the data she initially requested.” Ms. King responded on April 25th, and stated, “[t]he attached spreadsheet does not contain all of the requested information.” Based on Ms. King’s claims, in conjunction with the Department’s response, it is unclear if the Department possesses any additional records responsive to her request. 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, custodians are 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). Consequently, the Department must clarify whether any additional records exist.

Helene Bettencourt SPR24/1152 Page 3 April 30, 2024 Conclusion Accordingly, the Department is ordered to provide Ms. King with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. King 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: Marion J. King