Herman, Colman v. Department of Elementary and Secondary Education (SPR 20260947)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2026 SPR26/0947 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 Colman Herman 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 December 16, 2025, Mr. Herman requested: [1] Records of any and all expenses that [an identified individual] incurred in [their] capacity as DESE commissioner for the period July 1, 2025 to the present[.] This includes the following[:] [a] Expense reports, including back-up receipts[;] [b] Credit cards statements, including back-up receipts[;] [c] Automobile expense records, including back-up receipts[;] [d] Any and all other records that document your expenses, including back-up receipts[.] Please note that I am seeking both source documents and a spreadsheet or summary of the expenses. [2] DESE’s written employee reimbursement policy[.] Prior Appeal This request was the subject of a prior appeal. See SPR26/0147 Determination of the Supervisor of Records (January 27, 2026). In my January 27th determination, I ordered the Department to provide Mr. Herman with a response to his request. The Department responded on February 20, 2026, and provided multiple further responses through March 16, 2026. Unsatisfied with the Department’s responses, Mr. Herman petitioned this office and this appeal, SPR26/0947, was opened as a result. 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 SPR26/0947 Page 2 March 26, 2026 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. 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. Current Appeal In his appeal petition, Mr. Herman contends: On February 26, 2026, I then posed the following question to [the Department], among others[:] “There were a number of records for parking at Logan Airport, but no records for airfare, lodging and meals. Please clarify.” . . . Please order the Department of Elementary and Secondary Education to produce the missing records. Based on Mr. Herman’s appeal petition, he does not appear to be appealing the redactions to the responsive records under Exemption (c) of the Public Records Law. The Department’s Responses On February 20, 2026, the Department provided responsive records in redacted form, citing Exemption (c) of the Public Records Law. The Department further stated, “[t]he Department does not possess a spreadsheet or a record containing the summary of the expenses. You asked for DESE’s written employee reimbursement policy. You can find that online at [a specified hyperlink].” In multiple responses from February 26, 2026 through March 16, 2026, the Department stated that it was still working on answering Mr. Herman’s question regarding additional records.

Helene Bettencourt SPR26/0947 Page 3 March 26, 2026 Additional Records Based on the Department’s response and in conjunction with the information provided in Mr. Herman’s appeal, it is unclear if the Department possesses additional records responsive to the request. 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). 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 additional records exist. 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 (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman