Peter F. Winters v. Old Rochester Regional School District (SPR 20160709)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/709 Mr. Jonathan D. 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, Esq. appealing your May 8, 2016 response as Legal Counsel to the Old Rochester Regional School District (School District) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Winters for the names of donors who have made monetary gifts to the Sippican School in recent years. The School District denied the request, "stating that the gifts were made "anonymously" and that the records/data sought in the request are by necessary implication exempt from disclosure by G. L. c. 40, § 3 and G. L. c. 71, § 16(i). Attorney Winters appealed the School District's second response. This office opened the current appeal, SPR16/709. Previous appeal This request and denial was the subject of a previous appeal. See SPR16/264 Supervisor ofPublic Records Determination (May 2, 2016). In the determination, I informed the School District that it had failed to properly respond to a request for public records, and ordered the School District to provide a response that specifically claims one of the exemptions enumerated in the Public Records Law. See G. L. c. 4, § 7 (26)(a-u) The basis for the current appeal involves the same issue. The School District has still failed to support its claim that G. L. c. 40, § 3 and G. L. c. 71, § 16(i) operate through Exemption (a) ofthe Public Records Law to allow the School District to withhold the donors names. 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, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Jonathan D. Witten, Esq. SPR16/709 Page 2 September 16, 2016 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). 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. 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 in requesting and responding to requests for public records I refer you to 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 my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number below for further information. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). The School District claims that both G. L. c. 40, § 3 and G. L. c. 71, § 16(i) apply to withhold the identities of donors of monetary gifts to the schools. While the statutes speak to the ability of cities and towns in the Commonwealth to receive any grants or gifts earmarked for a particular use, including schools, and that a city and town may hold real and personal property of

Mr. Jonathan D. Witten, Esq. SPR16/709 Page 3 September 16, 2016 an estate in trust for the support of schools and for the promotion of education, the cited statutes are void of any language restricting the public disclosure of the identities of the donors. Exemption (a) regards two categories of exempting statutes that will allow a records custodian to withhold records or information under the Public Records Law. The first category is a statute that "specifically exempt records from disclosure." Such statutes state that a record shall be kept confidential, shall not be public, or shall not be subject to the Public Records Law. For example, reports of rape and sexual assault "shall not be public reports." The second category of statute is one that provides an exemption from public disclosure "by necessary implication." These statutes expressly limit dissemination of particular records or information to only a specifically defined group of individuals or entities. For example, student records are not public, however can only be disclosed to the student him or herself, parent or guardian of that particular student. Therefore, I find that neither Exemption (a) nor the cited cases, Adams v. Plunkett and Parker v. Dungan are applicable to withhold the identities of the donors under the Public Records Law either specifically or by necessary implication. Order I find the School District has failed to properly respond to a request for public records. Accordingly, the School District is hereby ordered to provide Attorney Winters a revised response to his request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. cc: Mr. Peter F. Winters, Esq. Mr. Douglas R. White, Jr., Ed.D