Michael Klein v. Department of Elementary and Secondary Education (SPR 20250204)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 6, 2025 SPR25/0204 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 Michael Klein 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 September 23, 2024, Mr. Klein requested, “a summary, including the nature/topic/area, of all investigations (by school) for all Hampshire and Hampden County high schools found to be non-compliant between 2017-present.” On January 6, 2025, the Department asked Mr. Klein if he “could identify the charter schools [he is] most interested in at this time...” On January 6, 2025, Mr. Klein gave a list of the following charter schools: [1.] Four Rivers [2.] Baystate Academy [3.] Pioneer Valley Performing Arts [4.] Pioneer Charter School of Science [5.] Springfield International Charter [6.] Martin Luther King Jr. Charter School of Excellence [7.] Phoenix Academy [8.] Hampden Charter School of Science [9.] Veritas Prep [10.] Hill town Cooperative [11.] Hampden Charter School of Science [12.] Holyoke Community Charter School The Department provided a response on January 23, 2024. Unsatisfied with the response, Mr. Klein petitioned this office and this appeal, SPR25/0204, was opened as a result. Subsequent 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 SPR25/0204 Page 2 February 6, 2025 to the opening of this appeal, the Department provided an additional response on January 24, 2025. 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 Department’s responses In its January 23, 2025 response, the Department stated, “[the Department has] been working on your updated request and planned on having it ready for production if not by end of day Friday, early Monday the 27th. I still plan on meeting that production estimate.” In its January 24, 2025 response, the Department provided records and stated, “[a]ttached please find the information you requested concerning non-complaint findings for the list of charter schools you requested.” Current appeal In his appeal, Mr. Klein stated, “[f]rom this letter, and prior correspondences from them regarding this matter, this deadline will not be met and/or will not be complete.” On January 29, 2025, in response to the Department’s January 24th production of records, Mr. Klein states, “I have still not received these public records. I did not withdraw this request at any time.” Based on Mr. Klein’s January 29th response, it is unclear if the Department possesses additional records responsive to the request. The duty to comply with requests for records

Helene Bettencourt SPR25/0204 Page 3 February 6, 2025 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). 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). Consequently, the Department must clarify whether any additional records exist. Conclusion Accordingly, the Department is ordered to provide Mr. Klein 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. Mr. Klein may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Klein