Bliss, Kevin v. Massachusetts Teachers Association (SPR 20140103)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords February 25, 2014 SPR14/103 Mr. Richard A. Mullane, Esq. Massachusetts Teachers Association 20 Ashburton Place Boston, MA 02108 Dear Attorney Mullane: I have received the petition of Kevin Bliss appealing your response to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Bliss requested copies of all financial records made or received by your clients, Jason Wilson and Kim Wilson and their immediate family members, associated with U. S. TaeKwonDo, including: unifonn purchases, lessons and special functions (i.e., tournaments), hotels, motels, restaurants; financial records including cashed checks, credit card statements; copies of contracts; disclosures associated with U. S. TaeKwonDo written during the same time period; and any administration approvals associated with U.S. TaeKwonDo, for the years 2009 through 2013. In a February 7, 2014 letter you indicated that the Wilsons are not the custodians of any public records, further suggesting to Mr. Bliss that his request should be made directly to Leominster Public School Department (Department). Based upon correspondence submitted to this office it is the contention of Mr. Bliss that your clients are in possession of responsive records that they have made or received in their capacity as employees of the Department and not as private citizens. Thereupon this petition for an administrative appeal was submitted. Access to a record requested pursuant to the Public Records Law rests on the content of the record. "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, created or received by any officer or employee of any town of the Commonwealth to serve a public purpose, unless falling within a statutory exemption. G. L. c. 4, § 7(26). On February 11, 2014 Department Counsel Gregory J. Angelini responded to your February i 11 letter requesting that your clients honor their obligation as Department employees and promptly provide Mr. Bliss and the Department with all records in their possession made or created by them in their capacity as such. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Richard A. Mullane, Esq. SPR14/103 Page Two February 25, 2014 In a February 14, 2014letter you explained that your clients were in possession of one responsive record related to airfare for a trip to Florida. You contend that the Department had already provided Mr. Bliss with this record. You further state that any other records in the possession of your clients are from their private lives and not records made or received in their capacity as Department employees. In your letter you explain that your clients have searched for, but were unable to locate any financial records related to the costs of the accommodations for the Florida trip. You further suggest that it is possible the Wilsons never had any such records. In a February 20, 2014 e-mail communication to this office you confirmed that "[t]he Wilsons do not have any additional documents that are public records within the scope of Mr. Bliss's requests." The possibility that the Department and its employees may not be properly maintaining records raises grave records management concerns. A records custodian has an affirmative duty to maintain records made or received in the normal course of his or her duties. G. L. c. 66, § 6, 17, and 17c; see also 950 C.M.R. 32.03 (definition of custodian). Accordingly, I am referring this matter to the Records Management Unit (RMU) of this office to assist the Department in implementing appropriate records management procedures to ensure that public records are properly maintained. Whereas you have indicated your clients possess a copy of the record related to airfare, you are hereby ordered to provide a copy of that record to Mr. Bliss within ten (10) days. I find that any records in your clients' possession that were not made or received by them in their capacity as Department employees do not fall within the jurisdiction of the Public Records Law and need not be provided to Mr. Bliss. Due to the uncertainty of whether your clients ever had possession of certain records, however, you are hereby put on notice that all records related to this matter that are in the possession of your clients, made or received by them in their capacity as employees of the Department, including electronic mail records, are subject to mandatory disclosure pursuant to the Massachusetts Public Records Law and must be provided to the Department and Mr. Bliss. If you need further assistance with your compliance to this order, please do not hesitate to contact this office. This administrative appeal is now closed. Supervisor of Records cc: Mr. Kevin Bliss Mr. Gregory J. Angelini, Esq. Mr. Terry French-Records Management Unit