Herman, Colman v. Department of Elementary and Secondary Education (SPR 20260151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2026 SPR26/0151 Helene H. 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 Colman Herman appealing the response of the Department of Elementary and Secondary Education (Department/DESE) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 15, 2025, Mr. Herman requested, “…copies of any and all final communications sent to teachers regarding matters of sexual misconduct and/or sexual harassment. This is for the period January 1, 2018 to the present. Communications include, but are not limited to, emails, text messages, letters, memoranda, faxes, and/or notes.” On December 17, 2025, Mr. Herman amended his request to, “…copies of any and all communications issued to teachers revoking their licenses as a result of sexual misconduct and/or sexual harassment. This is for the period January 1, 2018 to the present. Communications include, but are not limited to, emails, text messages, letters, memoranda, faxes, and/or notes.” The Department provided two responses on January 12, 2026. Unsatisfied with the responses, Mr. Herman petitioned this office and this appeal, SPR26/0151, 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 SPR26/0151 Page 2 January 29, 2026 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. Current Appeal In his appeal petition, Mr. Herman contends, “… I had asked [the Department] to ‘please let me now [sic] the rolling dates (item #6. 2) above), but [the Department] ignored this. … Accordingly, pleaser [sic] order the Department if [sic] Elementary Education to provide me with the rolling dates.” The Department’s January 12th Responses In its initial response on January 12, 2026, the Department stated: We don’t categorize allegations against license holders exactly that way. I think the closest thing we have to what you’re looking for are communications issued to teachers revoking their license in cases where the allegations are categorized as “boundary issues involving sex” and “boundary issues involving touching.” Would you like us to begin working on gathering and preparing those records to fulfill your request? Given the amount of redacting and review that producing the additional records will require, I expect it will take us until May 1 to produce them. Of note: You already have a subset of these records. In April 2024, I sent you the relevant records for 2015-2023 for boundary issues involving sex. Further on January 12th, the Department stated, “I will get to work on this. I’m not sure at this point whether we will be producing them in batches by year, but I will get them to you as soon as I can, possible [sic] in installments.” 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:

Helene Bettencourt SPR26/0151 Page 3 January 29, 2026 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. Herman submitted his amended request on December 17, 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). 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); see also 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. Conclusion Accordingly, the Department is ordered to provide Mr. Herman 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. Herman 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: Helene Bettencourt