Herman, Colman v. Department of Elementary and Secondary Education (SPR 20261299)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2026 SPR26/1299 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 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 March 12, 2026, Mr. Herman requested, “copies of any and all communications related to advanced placement test scores for the period March 1, 2026 to the present.” The Department provided responses on March 13, 2026 and March 18, 2026. Unsatisfied with the Department’s responses and claiming to not yet have received responsive records, Mr. Herman petitioned this office, and this appeal, SPR26/1299, 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 SPR26/1299 Page 2 April 22, 2026 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 March 13th and March 18th Responses In its March 13, 2026 response, the Department indicated that it “received [Mr. Herman’s] request and will get to work on it.” In its March 18, 2026 response, a representative for the Department stated, “[w]e’ve begun searching and have determined that it will take longer than 10 days for us to produce these records. I will be in touch with a date estimate when I know more.” Current Appeal In his April 9, 2026 appeal to this office, Mr. Herman notes that “[t]he last [he] heard from [the Department] was on March 18, 2026” and requests that the Supervisor “order the Department . . . to produce the responsive records.” 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. Herman submitted his request on March 12, 2026, and the Department has not provided the responsive records, nor cited an exemption for withholding records, I find that the Department has not met its burden in responding to the request in accordance with G. L c. 66, § 10(b)(vi). Consequently, the Department must provide an estimated date as to when it intends to complete the search and provide any responsive 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 SPR26/1299 Page 3 April 22, 2026 Conclusion Accordingly, the Department is ordered to provide Mr. Herman with a response to his 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