Mary Kate McGowan v. Lenox, Town of - Public Schools (SPR 20242995)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 15, 2024 SPR24/2995 Melissa Falkowski Assistant Superintendent of Business & Operations Lenox Public Schools 6 Walker Street Lenox, MA 01240 Dear Ms. Falkowski: I have received the petition of Mary Kate McGowan appealing the response of the Lenox Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 19, 2024, Ms. McGowan submitted the following request: As you know, a necessary condition for any district (LEA) in the commonwealth to be eligible to receive federal Part B IDEA funding is to sign the Conditions of Assistance document; this document ensures, among other things, that the LEA has special education policies and procedures that are both fully compliant with all relevant educational code (34 CFR § 300.201) and available to the public upon request (34 CFR 300.212). I am hereby requesting . . . your district’s special education policies and procedures . . . . Following correspondence from the School dated October 21, 2024, Ms. McGowan clarified her request in an email to the School on the same date, and stated: I did not request your signed Conditions of Assistance document. . . . I asked for your special education policies and procedures. I am asking you to share with me the documents that your district committed to having when representatives of the district signed the COA. Again, I am requesting the district’s special education policies and procedures. The School responded on October 23, 2024 and, following additional correspondence from Ms. McGowan, provided a further response on the same date. Unsatisfied with the School’s responses, Ms. McGowan petitioned this office and this appeal, SPR24/2995, was opened as a result. 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

Melissa Falkowski SPR24/2995 Page 2 November 15, 2024 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. 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 School’s Responses In its initial October 23, 2024 response, the School stated, “[t]he policies and procedure documents are housed in the Special Education office and they can be made available to you during the hours of the school day (8:30am-3:15pm) Monday through Friday (with the exception of Holidays and vacation weeks).” The School further advised, “[p]lease contact [an identified representative] . . . of the Special Education department . . . to arrange a viewing.” In an email replying to the School on the same date, Ms. McGowan contended, “[a]sking me to drive to Lenox to view the document does not satisfy the legal requirements of public access - either of public records law or of IDEA law (34 CFR§ 300.212).” Additionally, Ms. McGowan noted, “[y]ou have to have written special education policies and procedures (34 CFR 300.201)” and further stated, “[y]ou presumably have an electronic copy since you shared them or should have shared them with the DESE. . . . I am requesting an existing document. . . . Please . . . send me an electronic version.” Following Ms. McGowan’s October 23, 2024 correspondence, as described above, the School provided a further response on the same date. The School advised, “Lenox Public Schools believes that its offer to allow you access to the documents you request is in full compliance with the law. We are referring this matter to the District’s legal counsel. Please direct future inquiries to [an identified] Attorney . . . (cc’d on this email).” Current Appeal In her appeal, Ms. McGowan states, “I requested the special education policies and

Melissa Falkowski SPR24/2995 Page 3 November 15, 2024 procedures that all districts receiving Part B IDEA funds need to have and make available. They have instructed me to make an appointment and come to their school to view them.” Ms. McGowan further asserts, “[t]hese documents already need to be in electronic form (in order to share with the DESE and anyone unable to read or see).” Access to Records; Format of the Responsive Records The School is advised that public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Additionally, in accordance with 950 C.M.R. 32.06(1)(e), “a person shall not be required to make a personal inspection of the record prior to receiving a copy.” Further, under 950 C.M.R. 32.07(1)(a), “upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record.” Where the School has restricted access to the responsive records by requiring Ms. McGowan to review the records in person, I find that the School has not met its burden in responding to this request. The School is also advised that 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). Based on the School’s responses, in conjunction with Ms. McGowan’s appeal, it is unclear why the School cannot provide copies of the responsive records as requested by Ms. McGowan. The School must clarify this. Conclusion Accordingly, the School is ordered to provide Ms. McGowan with a response to her 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: Mary Kate McGowan