Marion King v. Department of Elementary and Secondary Education (SPR 20242618)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2024 SPR24/2618 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 June 30, 2024, Ms. King requested, “a list of complaints that have not yet progressed as far as a Letter of Finding and that were initiated on or before May 1, 2024.” Prior Appeals This request was the subject of prior appeals. See SPR24/2086 Determination of the Supervisor of Records (August 5, 2024) and SPR24/2335 Determination of the Supervisor of Records (August 30, 2024). In my August 30th determination, I found that the Department had not met its burden to withhold records under Exemptions (c), (d), and (f) of the Public Records Law. The Department provided a respone on September 17, 2024, including responsive records. Unsatisfied with the response, Ms. King petitioned this office and this appeal, SPR24/2618, 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 SPR24/2618 Page 2 September 30, 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. 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. The Department’s September 17th Response In its September 17, 2024 response, the Department provided records. Current appeal In her appeal, Ms. King stated, “[t]he data provided today, while helpful, is incomplete. It does not explain why so much data has been withheld. I ask that the Secretary’s office order DESE to provide a fully compliant response. The records should be provided in their original state - a searchable Excel format.” In light of Ms. King’s appeal, it is unclear if the Department possesses additional records that may be responsive to the 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). To the extent that additional records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The Department must clarify this matter. Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of Ms. King’s appeal, I find the Department must clarify whether the responsive records can be provided in the format that Ms. King has requested. The Department must clarify this matter. 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

Helene Bettencourt SPR24/2618 Page 3 September 30, 2024 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: Marion J. King Patrick Genovese, Esq.