Gerry Mroz v. Department of Elementary and Secondary Education (SPR 20241867)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2024 SPR24/1867 Helene Bettencourt Associate Commissioner Department of Elementary and Secondary Education 135 Santilli Highway Everett, MA 02149 Dear Ms. Bettencourt: I have received the petition of Gerry Mroz 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 June 12, 2024, Mr. Mroz requested: [S]tudent assessment data from the ‘first round’ of the 2024 Grade 10 MCAS ELA, Computer Based Tests, that was scored and previously made available to districts on or about April 24, 2024. I request anonymized data, not including demographic-related fields, but including any calculated fields such as raw score or summary or summary ones. I believe DESE refers to this discrete portion of data as: ‘Grade 10 ELA v1 – Round 1 machine-scored CBT items only’ Please provide the assessment data, including the district and school, in the format of a *.csv or Excel file. I ask you to apply your superior knowledge and of the public records to access, segregate, and provide the information requested. The Department responded on June 21, 2024, and again on June 27, 2024. Unsatisfied with the responses, Mr. Mroz petitioned this office and this appeal, SPR24/1867, 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). 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 SPR24/1867 Page 2 July11, 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. 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 June 21st and June 27th Responses In its June 21, 2024 response, the Department states that it “possesses no record containing the data elements described in your request, and for this reason the Department must deny it.” In its June 27, 2024 response, the Department clarified by stating, “the Department possesses no segregable record or portion of a record that matches the description you provided. The data set described in your request exists presently as raw data in a form unsuitable for review, analysis or production.” Current Appeal In his appeal, Mr. Mroz contends that “none of the things DESE intends to do with the data prevents it, today, from segregating, as necessary to de-identify students, and to provide the requested public records that it previously provided to districts in April.” Burden of Specificity The Department is advised that, under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Accordingly, the Department’s response did not contain the specificity required in a denial of access to public records. From the Department’s responses, it is unclear why the records cannot be either redacted or segregated. Further, the Department has not cited an exemption of the Public Records Law for withholding or redacting the responsive records. The Department must clarify these matters.

Helene Bettencourt SPR24/1867 Page 3 July11, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Mroz with a response to the 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. Sincerely, Manza Arthur Supervisor of Records cc: Gerry Mroz