Gerry Mroz v. Department of Elementary and Secondary Education (SPR 20242359)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 3, 2024 SPR24/2359 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. Previous Appeal This request was the subject of a previous appeal. See SPR24/1867 Determination of the Supervisor of Records (July 11, 2024). In my July 11th Determination, I ordered the Department to provide Mr. Mroz with a response to his request. The Department responded on August 2, 2024. Unsatisfied with the response, Mr. Mroz petitioned this office and this appeal, SPR24/2359, 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 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 SPR24/2359 Page 2 September 3, 2024 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. Current Appeal In the appeal to this office, Mr. Mroz states, “DESE did not comply with the Supervisor’s Order in SPR24/1867 to provide a ‘response to the request […] within ten (10) business days.’ DESE responded after 16 business days had elapsed, and refused, again, to produce any of the requested public records.… DESE is no longer falsely claiming that it ‘possesses no segregable record or portion of a record that matches the description you provided,’ as it also previously attempted…. DESE didn’t provide timely notice under Ch. 66 Section 10 for an extension of time to produce the records. Even so, section 10(b)(vi) specifies, ‘for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records.’ (The fifteen (15) business days which could be permitted in that case tolled on June 27th). The Department’s August 2nd Response In its August 2, 2024 response, the Department states it “requires approximately 6 to 8 weeks to provide you with the records you requested… First, the records in their current state are not suitable for public disclosure under public records law, and there are hundreds of thousands of data points responding to your request that need to be reviewed to ensure compliance with federal and state laws and regulations. Second, the Department is currently working through existing, high-priority obligations to the public so that it can appropriately dedicate its workforce to the goal of responding to your request.” The Department further states, “[f]ederal and state laws and regulations prevent the Department from disclosing information that would identify individual students. In Champa v. Weston, the Supreme Judicial Court (SJC) held that personally identifiable information about students, as protected by the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, falls under exemption (a) of the Massachusetts public records law. 473 Mass. 86 (2015).”

Helene Bettencourt SPR24/2359 Page 3 September 3, 2024 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). Where the Department intends on providing Mr. Mroz with records responsive to his request, to the extent possible, the Department must provide the responsive records on a rolling basis. 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