Givan, Jay v. West Boylston, Town of - Public Schools (SPR 20150779)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 22, 2015 SPRlS/779 Ms. Elizabeth Schaper Superintendent of Public Schools Town of West Boylston 125 Crescent Street West Boylston, MA 015 83 Dear Superintendent Schaper: I have received the petition of Jay Givan appealing the response of Town of West Boylston School Department (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, this appeal involves Mr. Givan request for records regarding how many out-of-school suspensions were given to special education West Boylston resident students and how many given to special education non-resident students. In a response dated October 23, 2015 the District denied providing the responsive records maintaining that in order to provide the responsive record it would have to merge two separate data points in order to create a responsive record. The Department contends that running this report would be creating a new record. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26) (defining "custodian" as the public employee with routine access to or control of public records). There is no obligation to create a record in response to a request for public records. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in response to a request for information). In your letter you state the School does not have in written form, precisely what Mr. Givan seeks. However, the database that holds the student demographic information and the database that holds the discipline data both fall within the definition of "public record" and the provision of the databases would be responsive to his request. A custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.05(4 ). The Public Records Law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes "public records." The statutory definition of "public OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Superintendent Schaper SPR15/779 Page Two December 22, 2015 records" does not distinguish between paper records and electronically stored information (ESI). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics. G. L. c. 4, § 7(26). Moreover, the law requires the custodian of a public record to permit inspection of a public record "or any segregable portion ... which is an independent public record." G. L. c. 66, § 10(a). The public records exist; the information is stored electronically in fields. Using a computer program to translate the information in those fields into a comprehensible form on paper does not involve "creation" of a new record. Globe News Paper v. Conti, Cf. 2001 Mass. Super. LEXIS 328; 13 Mass. L. Rep. 355. In providing the information responsive to his request the School would not be compelled to create a record that has not yet been created. Accordingly, whereas the Department has not overcome the presumption that the requested records are public, the Department is hereby ordered, within ten (1 0) days of this order, to provide Mr. Givan with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Givan a written explanation, with specificity, 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. 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. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.0L0), cu stodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. ry t ly y rs, cc: Mr. Jay Givan