John Hilliard v. Department of Elementary and Secondary Education (SPR 20250544)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 10, 2025 SPR25/0544 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 John Hilliard, of the Boston Globe, 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 January 29, 2025, Mr. Hilliard requested the following records: [1] Any emails, text messages, or instant messages (ie Slack) sent or received on Jan. 28, 2025 by [identified individuals][.] [2] To narrow the scope of this request, I seek emails, text messages, or instant messages from Jan. 28, 2025 related to federal grant funding[.] [3] Any drafts of public statements, alerts or announcements related to federal grant funding on Jan. 28, 2025. The Department provided a response on February 14, 2025. Unsatisfied with the Department’s response, Mr. Hilliard petitioned this office and this appeal, SPR25/0544, 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 SPR25/0544 Page 2 March 10, 2025 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. The Department’s February 14th Response In its February 14, 2025 response, the Department stated, “[w]e are working on the part of your request that involves the acting commissioner’s communications. Please note that if you are looking for the Governor’s and Lieutenant Governor’s emails, you will need to contact their offices.” Timeliness in providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Hilliard’s request was originally submitted on January 29, 2025, and the Department has not provided responsive records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, I find the Department must provide an estimated date as to when it expects to complete its review and provide the requested records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis.

Helene Bettencourt SPR25/0544 Page 3 March 10, 2025 Conclusion Accordingly, the Department is ordered to provide Mr. Hilliard with a response, 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. Hilliard may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: John Hilliard