Allen Nitschelm v. Acton-Boxborough Regional School District (SPR 20160682)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/682 Mr. D. M. Moschos, Esq. Mirick, O'Connell, DeMallie & Lougee, LLP 100 Front Street Worcester, MA 01608 Dear Attorney Moschos: This office has a received a petition from Allen Nitschelm of the Acton Forum appealing Acton-Boxborough Regional School District's (School) response to his request for public records. See G. L. c. 66, § lO(b); see also 950 C.M.R. 32.08(6). Specifically, Mr. Nitschelm requested a copy of a letter dated January 16, 2015 referenced in a settlement agreement. 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). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § lO(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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). 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. D. M. Moschos, Esq SPR16/682 Page2 September 16, 2016 Previous appeal and determinations This request is related to the subject of previous appeals and determinations. See SPR15/651 Determination of the Supervisor of Records (October 5, 2015); SPR15/827 Determinations of the Supervisor of Records (December 31, 2015; February 8, 2016; June 30, 2016). These prior determinations pertained to redactions within a settlement agreement between the School and a specific individual. In the June 30 determination I found the School had not met its burden to justify the first redaction on page one (1) and the redaction on page ten (10) of the agreement under the Public Records Law. I ordered the School to provide a revised written response to the request, prepared in a manner consistent with this order, the Public Records Law and its Access Regulations (Regulations). The School provided a response to this order in a letter dated July 15, 2016 in which it provided the agreement without the aforementioned redactions. Current appeal The removal of these redactions revealed the existence of a letter dated January 16, 2015; Mr. Nitschelm requested this letter in an email dated July 16, 2016. On July 22, 2016 the School responded to this request by claiming this letter is exempt from disclosure under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Subsequently, Mr. Nitschelm informed this office he objects to this response and requests this office take further action. This appeal (SPRl 6/682) was opened as a result. The School's July 22 response In the School's July 22 letter, you claim the responsive letter may be withheld under G. L. c. 149, § 52C as well as G. L. c. 214, § lB as each operates under Exemption (a) of the Public Records Law. You also cite the personnel clause of Exemption (c) to support the School's argument for non-disclosure. In camera inspection of records Upon further consideration of Mr. Nitschelm's petition, it is the finding of this office that an in camera review of an unredacted copy of the responsive letter would facilitate a determination as to the applicability of any exemption claims made by the School. See 950 C.M.R. 32.08(6). After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. It is important to note that any cover letter provided with the materials submitted for in camera review will be considered a public record and will retained as part of the file associated with this appeal. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6); see also G.L. c. 66, § 1.

Mr. D. M. Moschos, Esq SPR16/682 Page 3 September 16, 2016 This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of her duties has access to or control over records). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Conclusion Accordingly, you are hereby ordered to provide this office with an unredacted copy of the responsive letter. The School may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive record. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. tours, V ry 2illiams I A, cc: Mr. Allen Nitschelm