Martins, Joseph v. Fall River, City of - Public Schools (SPR 20150301)

The Commonwealth ofMassachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 2, 2015 SPRlS/301 Mr. Bruce A. Assad, Esq. Law Office of Bruce A. Assad 16 Bedford Street, Suite 3A P.O. Box 1268 Fall River, MA 02722 Dear Attorney Assad: I have received the petition of Joseph Martins appealing the response of the Fall River Public Schools (School) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Martins requested various categories of information and records regarding a specifically identified arbitration hearing. In your response dated March 20, 2015, you provided most of the requested information. Information pertaining to the number and cost of paid administrative leave days was withheld from disclosure for what you deemed "privacy issues." No exemption to the Public Records Law was cited. In his request as well as in his petition Mr. Martins references his status as "a duly elected School Committee member." Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). In any event, Mr. Martins' statements have no bearing on this matter as his status does not grant him any greater right of access under 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, § lO(c); 950 C.M.R. 32.08(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 town 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, § lO(c); see also Dist. Attorney for the Norfolk OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Bruce A. Assad, Esq. SPR15/301 Page Two July 2, 2015 Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In his appeal to this office, Mr. Martins states "[t]he response from Attorney Assad contains most of the financial information I seek with the exception of the number of days and total sum of money paid as Administrative Leave to the Principal involved in the arbitration." As a result, "the number of days and total sum of money paid as Administrative Leave to the Principal involved in the arbitration" is the only category of requested records addressed in this determination. In your response on behalf of the School dated March 20, 2015, you state "[t]he request for the number of paid Administrative Leave Days granted to the Principal involved in the subject arbitration is not provided herein due to privacy issues." As indicated above, this response does not cite an exemption under the Public Records Law nor does it explain the applicability of an exemption to the requested records. It should be noted that under the Public Records Law, a public employee is not required to answer questions or create documents in response to questions. However, the School has failed to indicate whether documents exist that contain the "the number of days and total sum of money paid as Administrative Leave to the Principal involved in the arbitration." As a result, the School failed to meet its burden of explaining with specificity how records containing "the number of days and total sum of money paid as Administrative Leave to the Principal involved in the arbitration," in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1 O(a). Accordingly, whereas the School has not overcome the presumption that the requested records are public, the School is hereby ordered, within ten (10) days ofthis order, to provide Mr. Martins with the requested records. If the School maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days, provide to Mr. Martins a written explanation, with spec?ficity, how a particular exemption applies to each record. 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. This response must confirm whether the requested records exist and are in the School's possession. If the responsive records are not in the School's possession, it must clearly indicate such in its response. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Mr. Bruce A. Assad, Esq. SPR15/301 Page Three July 2, 2015 lliams Supervisor of Records cc: Mr. Joseph Martins