Collins Fay-Martin v. Department of Elementary and Secondary Education (SPR 20252751)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2025 SPR25/2751 Helene Bettencourt Primary Records Access Officer Department of Elementary and Secondary Education 135 Santilli Highway Everett, MA 02149 Dear Ms. Bettencourt, I have received the petition of Collins Fay-Martin, Esq. 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 August 31, 2025, Attorney Fay-Martin requested, “[a]ll PRS letters of finding from 1/1/2023-current.” The Department responded on September 16, 2025, assigning the request reference number P004777-83125. Unsatisfied with the Department’s response, Attorney Fay-Martin petitioned this office and this appeal, SPR25/2751, 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. 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 SPR25/2751 Page 2 September 29, 2025 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 September 16th Response On September 16, 202, an attorney for the Department stated: As written, your request covers a very broad range of records. A preliminary search yielded 1,468 Letters of Finding. The Department estimates that a review of each record will take approximately 45 minutes, or over 1,100 hours of staff time. The details of PRS complaints and the outcomes of investigations are described in Letters of Finding. Each record can range from 6 to over 20 pages describing the nature of specific allegations of non-compliance, the details of an investigation, the outcome, and the basis for it. To properly protect the privacy of students and third parties, each page of these Letters must be reviewed by at least two members of staff. To avoid a lengthy and potentially costly production, and to better serve your intent to capture information, the Department asks that you provide greater specificity as to what you are interested in… In the event this proposal does not suit you, or in the event we cannot agree to a narrower scope of production that the Department can produce to you efficiently and in a reasonable period of time, the Department reserves its right to assess charges for the cost of production according to the rules set forth in 950 CMR 32.07 because of the breadth of your request. Note that the Department has the right to assess fees at $25/hour. Current Appeal In her appeal petition, Attorney Fay-Martin stated: …my public records request was issued 8/31/2025, and was not timely responded to within 10 business days. I maintain my 8/31/2025 request for public records as originally written… and due to DESE’s failure to timely respond to my records request, DESE is barred from charging a fee. In a supplemental email to this office on September 23, 2025, the Department stated: The Department’s goal is to provide records requestors are most interested in as quickly as possible and free of charge within the 10-business day timeline contemplated by public records law. In furthering this goal, the Department hopes to continue to engage in discussions with the requestor and intends to provide a further response.

Helene Bettencourt SPR25/2751 Page 3 September 29, 2025 Also, please note that the request was submitted on August 31, 2025, the Sunday before a Monday holiday. The Department did not receive the request until the office reopened on Tuesday, September 2, 2025... The Department sent its response on September 16, 2025, which is timely. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Attorney Fay-Martin submitted her request on Sunday, August 31, 2025, and Monday, September 1, 2025 was a holiday, the request would not be considered received until Tuesday, September 2, 2025, the following business day. Where the Department provided a response on September 16, 2025, which is 10 business days from receipt of the request, I find the Department complied with G. L. c. 66, § 10(e) by providing a timely response to Attorney Fay-Martin’s request. Accordingly, I find that the Department may properly assess a fee for this public records request. Reasonable Description of Records Sought Please be advised that in Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. In addition, please be aware that the request must reasonably describe the specific records sought. See G. L. c. 66, § 10(a)(i). In a recent case, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019). This office encourages Attorney Fay-Martin and the Department to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the

Helene Bettencourt SPR25/2751 Page 4 September 29, 2025 requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably). Conclusion Accordingly, I will now consider this administrative appeal closed. If outstanding issues remain after Attorney Fay-Martin and the Department communicate further as described above, Attorney Fay-Martin may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Collins Fay-Martin, Esq. Patrick J. Genovese, Esq.