Gerry Mroz v. Department of Elementary and Secondary Education (SPR 20242391)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 4, 2024 SPR24/2391 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 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 July 12, 2024, Mr. Mroz requested, “2024 MCAS student assessment data that was released to districts at various times on or before July 12, 2024, and identified by DESE in its communication to districts in the Student Assessment Update…” The Department responded on August 6, 2024. Unsatisfied with the response, Mr. Mroz petitioned this office and this appeal, SPR24/2391, 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 SPR24/2391 Page 2 September 4, 2024 The Department’s August 6th Response In its August 6, 2024 response, the Department stated, “the Department has historically provided the final, corrected version of this unscored data to the public and will continue to do so. We make this information available after the Department has completed its primary responsibility of making student MCAS scores available to schools and families and making school, district and statewide results available to schools and districts, the public, and the Board of Elementary and Secondary Education. We anticipate that the unscored data file will be prepared in the regular course of the Department’s business in the late fall 2024… The Department requires approximately 8 to 10 weeks to provide [Mr. Mroz] with the records [he] requested.” Current Appeal In his appeal petition, Mr. Mroz states, “[d]ue to DESE’s failure to make any timely Response to the July 12th Public Records Request, it’s now time-barred by statute from claiming any extension of time to produce the records. Accordingly, this Appeal addresses only the pertinent requirements of Chapter 66 and 950 CMR 32, which require DESE to provide the requested records…” Possession, Custody, or Control The Department 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). Further, in accordance with the Public Records Law, 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). Where Mr. Mroz requested “2024 MCAS student assessment data that was released to districts at various times on or before July 12, 2024” and the Department’s August 6th response stated that “the unscored data file will be prepared in the regular course of the Department’s business in the late fall 2024[,]” it is unclear whether the Department currently possesses records that are responsive to Mr. Mroz’s request. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. Mroz with a response to his 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. Mr. Mroz may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Helene Bettencourt SPR24/2391 Page 3 September 4, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Gerry Mroz