Liyanni Vazquez v. Department of Elementary and Secondary Education (SPR 20251868)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2025 SPR25/1868 Helene Bettencourt Records Access Officer Department of Elementary and Secondary Education 135 Santilli Highway Everett, MA 02149 Dear Ms. Bettencourt: I have received the petition of Liyanni Vazquez, of the Mental Health Legal Advisors Committee, 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 April 11, 2025, Ms. Vazquez sought the following “from the 2021-22, 2022-23, 2023-24, and if available, 2024-25 school reports”: [1] For each school district, the number and percentage of students receiving special education services, as compared to their non-disabled peers, in each of the following placements, disaggregated by sex, national origin, economic status, race, religion, and ELL status, by age level, and if possible, in a cross-tabulable manner, in the following placements: [a] Full inclusion[;] [b] Partial inclusion[;] [c] Substantially separate[;] [d] Public day[;] [e] Private day[;] [f] Private residential[;] [g] Homebound or hospital[;] [h] Correctional facilities[.] [F]or student placed in public or private special education schools or programs, please specify the number and percentage thereof in approved programs, unapproved programs, and whether the programs are in state or out of state… 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 SPR25/1868 Page 2 July 14, 2025 The Department provided responses on April 28, 2025 and June 2, 2025. Unsatisfied with the Department’s responses, Ms. Vazquez petitioned this office and this appeal, SPR25/1868, 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. If there are any fees associated with a response a written, good faith estimate must be provided. See 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 April 28th and June 2nd Responses In its April 28, 2025 response the Department stated, “…the Department does not have a public record responsive to your request…Although the Department collects data related to student demographic information and special education placements, it does not maintain said data in the specific format you are requesting and creating the record you describe would require the Department to go beyond furnishing a segregable portion of an existing public record…” In its June 2, 2025 response the Department stated the following: Please be advised that the Department maintains its position that it does not possess the record you requested…Although much of the demographic data listed in your request is contained in our SIMS database, creating the record you describe would require more than the mere segregation and extraction of information from an existing public record…The Department has not created a record like the one you describe, so in order to do so, the Department would need to configure a new query search to pull the data fields you requested, match and aggregate the data into a single record, create and apply new suppression rules to prevent the risk of identifying individual students, and manually check the generated data to verify that it does not contain personally identifiable information.

Helene Bettencourt SPR25/1868 Page 3 July 14, 2025 Current Appeal In her petition to this office on June 27, 2025, Ms. Vazquez stated the following: [1] The records requested are a matter of public record which DESE has a duty to both monitor and make publicly accessible. …DESE does not claim that the records requested are exempt from disclosure …[The Department’s] statutory duty to address disproportionate assignments in special education requires DESE to collect, maintain, and monitor the data sought in MHLAC’s records request… [2] Providing responsive records would not exceed DESE’s duties under Massachusetts public records laws. No Duty to Create Records Please be advised, under the Public Records Law, a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Given that the Department does not possess records in the format requested by Ms. Vasquez, and the Department has explained that it would have to create the record in response to the request, I find the Department has met its burden in responding to this request under the Public Records Law. Ms. Vaquez may wish to modify her request for records contained in the Department’s SIMS database, if necessary. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Vazquez is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Helene Bettencourt SPR25/1868 Page 4 July 14, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Liyanni Vazquez