Peter F. Winters v. Old Rochester Regional School District (SPR 20160264)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 2, 2016 SPR16/264 Mr. Jonathan Witten, Esq. Huggins and Witten, LLC 156 Duck Hill Road Duxbury, MA 02332 Dear Attorney Witten: I have received the petition of Peter F. Winters appealing the February 9, 2016 response of Old Rochester Regional School District (School District) to a February 4, 2016 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Winters requested a copy of records regarding "gifts given to Sippican School." As Legal Counsel for the School District, you denied Mr. Winters' request, citing the statutory exemption to the Public Records Law. G. L. c. 4, § 7 (26) (a). Mr. Winters appealed. 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). 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, § 10(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Failure by the School District to cite an underlying statute to support nondisclosure Your February 9, 2016 response fails to properly cite an exemption in the Public Records Law to withhold the requested records. While you cite the language of Exemption (a) of the Public Records Law, the Statutory Exemption, you have failed to support that exemption by producing an applicable Massachusetts General Law that would operate through Exemption (a) to withhold the records in their entirety. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Jonathan Witten, Esq. SPR16/264 Page2 May 2, 2016 Order I find the School District has failed to properly respond to a request for public records. Accordingly, the School District is hereby ordered, within ten (10) days ofthis order, to provide Mr. Winters with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the School District maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Winters a written explanation, with specificity, how a particular exemption applies to each record or each portion of a 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 of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist the School District in responding to requests for public records I advise a review of our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of y staff will visit a records custodian in person to conduct training workshops on the P lie Records Law upon request. Please contact my office directly at the telephone nu er b 1 w for further information. urs, cc: Mr. Peter Winters, Esq.