Cohen, Philip v. Wayland, Town of - Public Schools (SPR 20150825)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 30, 2015 SPRlS/825 Dr. Paul Stein Superintendent of Schools Wayland Public Schools 41 Cochituate Road P.O. Box 408 Wayland, MA 01778 Dear Dr. Stein: I have received the petition of Philip Cohen appealing the response of the Wayland 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. Cohen requested a copy of six (6) deposition transcripts, including applicable exhibits and other documents exchanged by the adverse parties during the litigation in the civil litigation entitled, Martha Jamieson v. Wayland Public Schools, et al, (Middlesex Superior Court, civil action no. 11-2648). Mr. Cohen stated in his August 25 request to the School that he is excluding from his request attorney-client privileged records, attorney work product records and the drafts and final settlement agreement between the parties. It is my understanding that this civil action was settled by the parties in 2013. Your September 24, 2015 response explained that the responsive records are held in the offices of "outside firms" that represented the School in the matter. You further stated your position that the "public records laws do not require a government official or government body to request documents from outside firms, companies or vendors in order to respond" to a public records request. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 ( 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). The fact that the School does not have physical possession of government records does not relieve its obligation to produce public records upon request. A custodian of records has an affirmative duty to maintain records made or received in the normal course of his or her duties. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Dr. Paul Stein SPR15/825 Page Two December 30, 2015 G. L. c. 66, § 6, 17, and 17c; G. L. c. 66, § 15. While the records may be stored elsewhere, they remain the Schools' records. Further, as government records the Schools is mandated by any records retention schedule that may be applicable for such records. See Massachusetts Municipal Records Management Manual. http://www.sec.state.ma.us/arc/arcpdf/MA Municipal Records Retention Manual.pdf. In a December 16, 2015 I discussed the issues surrounding this appeal; in that conversation you indicated that the Schools' legal counsel may wish to discuss the matter with my office directly. To the best of my knowledge, as of the date of this letter no such call has been received by my office. Accordingly, whereas the Schools have not overcome the presumption that the requested records are public and are the Schools' records, the Schools are hereby ordered, within ten (1 0) days of this order, to provide Mr. Cohen with a revised response to his request, prepared in a manner consistent with this order, the Public Records Law, its Access Regulations and the Municipal Records Management Manual. If the Schools maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Cohen 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 ($10.00), custodian ofrecords shall provide written good faith estimate). Once the fees are paid, y u must provide the responsive iuz, j records. )1 II . Williams cc: Mr. Philip L. Cohen