Globe Newspaper v. Commissioner of Educ.

• Decision Date: 04 April 2003
• Citation: 786 N.E.2d 328
• Parties: GLOBE NEWSPAPER COMPANY v. COMMISSIONER OF EDUCATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 328

786 N.E.2d 328

GLOBE NEWSPAPER COMPANY v.COMMISSIONER OF EDUCATION.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 7, 2003.

Decided April 4, 2003.

Mark W. Batten, Boston, for the plaintiff.

Jane L. Willoughby, Assistant Attorney General, for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

CORDY, J.

In this casewe must decide whether the Department of Education(department) complied with the public records law, G.L. c. 66, § 10, when it did not release certain preliminary testing data, relating to the performance of schools and school districts, for seven days after receiving a public records request from a newspaper, while it took steps to correct potential errors in the data's compilation.To do so, we must interpret the disclosure provisions of G.L. c. 66, § 10, and reconcile the apparent internal tension between two of its paragraphs: one of which proclaims that the custodian of public records shall permit public records to be inspected and copied "without unreasonable delay"(§ 10 [a); and the other which requires that such custodian comply with a request to inspect and copy public records "within ten days" of its receipt (§ 10 [b]).¹We conclude, as did the motion judge, that the release of public records within ten days of the receipt of a request to inspect or copy them is presumptively reasonable, and that although this presumption may be overcome by a requestor who can demonstrate a compelling need for earlier disclosure, the requestor, Globe Newspaper Company(Globe), did not meet that burden here.Consequently, summary judgment was properly granted to the department.

1.Background.The department administers an educational assessment test annually to nearly every student in Massachusetts in the fourth, eighth, and tenth grades.The test is called the Massachusetts Comprehensive Assessment System (MCAS) test, and it has been controversial (and newsworthy) since its inception.The release of the MCAS results is an annual source of anxiety not only for the students who take the test, but also for the department, district superintendents, school principals, teachers, school districts, and the communities they serve.In the spring of 2000, over 220,000 students from approximately 1,800 schools in 350 districts took the MCAS test.The department's MCAS contractor, Harcourt Educational Measurement, Inc.(Harcourt), was responsible for scoring all the tests and providing the department and school district superintendents with the results.²

On November 8, 2000, a reporter for the Globe submitted written request for public records to the commissioner of the department.The request sought the release of "all of the 2000 MCAS scores, including school, district, and statewide results, as soon as the department has received them."The Statewide test results were released to the public, including the Globe, on Monday, November 13.That release did not include the compilation of test results by individual schools or school districts because the department did not receive that data from Harcourt until the following day, November 14.As received by the department, the school and district test result data were encoded on a single CD-ROM.³,⁴ On receipt, the department announced its intention to release the results on Tuesday, November 21.The stated purpose of the seven-day delay between receipt and release was to permit the department, district superintendents, and school principals an opportunity to review and correct potential errors in the data compilation.⁵,⁶

On learning that the department was not going to release the results until November 21, the Globe filed suit seeking a preliminary injunction requiring the department to release the results immediately.On November 15, a hearing was held on the Globe's motion, which was denied the next day by a judge in the Superior Court.On November 21, the department released the school and district test results.Among the many errors reported to the department by school districts during this period of delay, and corrected prior to the public release of the results, were errors such as: (a) students from an alternative high school being misclassified as attending a regional vocational technical high school; (b) students who took the standard examination being misclassified as taking the alternative examination; and (c) students' scoring data missing entirely and being reported as a zero.

For all practical purposes, the department's release of the results rendered moot any further proceedings in the Superior Court.Nonetheless, because resolution of the issue required the interpretation of G.L. c. 66, § 10, in circumstances capable of repetition in a manner that might again evade review, the judge prudently permitted the matter to proceed.See, e.g., Karchmar v. Worcester,364 Mass. 124, 136, 301 N.E.2d 570(1973);Tsongas v. Secretary of the Commonwealth,362 Mass. 708, 713-714, 291 N.E.2d 149(1972);Southern Pac. Terminal Co. v. ICC,219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310(1911).The Globe and the department filed cross motions for summary judgment, and on December 10, 2001, the judge denied the Globe's motion and granted summary judgment for the department.The Globe appealed and we transferred the case to this court on our own motion.

2.Discussion.The outcome of this case turns on the proper interpretation of the Commonwealth's public records law.The parties do not dispute that the compiled school and district test results were public records subject to disclosure on request.G.L. c. 4, § 7, Twenty-sixth.⁷What is at issue is a procedural question of first impression: Is a seven-day delay in releasing public records "unreasonable delay"(prohibited by § 10 [a]) even though it occurs "within ten days" of a request, as required by § 10 (b)?⁸

Section 10 (a) requires that "[e]very person having custody of any public record ... shall, at reasonable times and without unreasonable delay, permit it, or any segregable portion of a record which is an independent public record, to be inspected and examined by any person, under his supervision, and shall furnish one copy thereof upon payment of a reasonable fee."Section 10 (b) requires that "[a] custodian of a public record shall, within ten days following receipt of such request for inspection or copy of a public record comply with a request."The parties propose divergent interpretations of these provisions.The Globe posits that public records should be released "without unreasonable delay" in accordance with § 10 (a), and that § 10 (b) demarcates only a maximum period of delay of ten days.⁹It then argues that because the department possesse the test results on November 14 in a form (a single CD-ROM) that could readily have been copied and provided to it, the seven-day delay was unreasonable and therefore violative of § 10.¹⁰The department, on the other hand, contends that § 10 (a)and§ 10 (b) should be interpreted to mean that the release of public records within ten days of a request is presumptively reasonable and that by making the test results available to the Globe within seven days of receiving them, the department fully complied with § 10.The department does not contend that a custodian who complies with a public records request within ten days has, as a matter of law, always acted "without unreasonable delay," and concedes that there might be compelling circumstances in which delayed compliance, even within the ten-day period allowed by § 10 (b), could constitute "unreasonable delay."It argues, however, that the requestor bears the burden of establishing the existence of such compelling circumstances and that they are not present in this case.The department's position was in large measure adopted by the motion judge.

In interpreting statutes, "[n]one of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute, so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature."Bolster v. Commissioner of Corps. & Taxation,319 Mass. 81, 84-85, 64 N.E.2d 645(1946).SeeFluet v. McCabe,299 Mass. 173, 178, 12 N.E.2d 89(1938).By looking to the structure of the statute and reading it as a whole so that the paragraphs in question inform one another, the internal tension between the "without unreasonable delay" language of § 10 (a) and the "within ten days" language of § 10 (b) dissipates.

The first sentence of § 10 (a) sets forth the general principle of broad public access to government records, tempered by the standard of reasonableness.Public records are to be made available for examination at government offices not at any time, but at "reasonable times"; public access to such records need not be immediate, but must be afforded "without unreasonable delay"; and the custodian of the records must provide a copy of the record to be examined to the person requesting it but only on the payment of a "reasonable fee."By incorporating the concept of reasonableness into the manner, means, and methods by which the general principle of broad access to public records is to be implemented, the statute implicitly recognizes that it may not always be convenient, practical, or appropriate for the custodian to put aside other equally important or more urgent public business in order to respond immediately to every request for the examination of public records.

What follows the enunciation of the general principle of reasonable access are more specific statutory provisions fleshing out or defining at least some of the particulars respecting its implementation.For example, while fees for providing copies are to be "reasonable,"the statute then specifically sets the fees to be charged for...