Peter F. Winters v. Old Rochester Regional School District (SPR 20161008)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records November 17,2016 SPR16/1008 Jonathan D. Witten, Esq. Huggins and Witten, LLC 156 Duck Hill Road Duxbury, MA 02332 Dear Attorney Witten: I have received the petition of Attorney Peter Winter appealing your October 16, 2016 response on behalf of your client, the Old Rochester Regional School District (School District) and Sippican School, to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Winter requested a copy of all records concerning gifts made to Sippican School, including the identity ofthe donor(s) of the gift(s). In its third response, the School District continues to deny the request for the identity of the donors, stating that 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 again, and this office opened the current appeal, SPR16/1008. Prior appeals The records were the subject of two prior appeals and determinations by this office. See SPR16/264 Determination ofthe Supervisor ofRecords (May 2, 2016); see also SPR16/709 Determination of the Supervisor of Records (September 16, 2016). In my determinations, I ordered the School District to provide a detailed response to support its Exemption (a) statutory claim to withhold the "donor's identity," however, the School District continues to merely restate its prior responses of February 4, and May 8, 2016. The School District's October 16,2016 response to Attorney Winters was made thirty days after the date of my determination, which required a detailed response within ten (1 0) days. 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, § 10(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. The School District is reminded that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Jonathan D. Witten, Esq. SPR16/1008 Page2 November 17, 2016 The School District posits that the donors have a right to make a gift upon such terms and conditions as they desire within the limits of the law, and that such gift(s) constitute a contract between the donor and the donee. The School District cites a 1931 court case to support its decision to withhold the "identity" of the donor. See Adams v. Plunkett, 274 Mass. 453, 461. I disagree. No government agency may make private an otherwise public document merely by entering into an agreement to keep its terms confidential. Washington Post Co. v. Department of Health and Human Services, 690 F.2d 252, 263 (D.C. Cir. 1982); see also Galvin v. Mass. Mut. Life Ins. Co., 20 Mass. L. Rep. 533, 28 (2006). If such were the case, any government employee could unilaterally frustrate the purpose of the Public Records Law with a rubber stamp. See Washington Post Co., 690 F.2d at 263 (government agency cannot circumvent the Federal Freedom oflnformation Act with a private agreement). Therefore, I find that the School District has failed to meet its statutory and regulatory obligation under the Public Records Law and Access Regulations to withhold the identity of the donor under an agreement to keep the gift confidential. Order I find the School District has failed to properly respond to the request for public records and to comply with my determination on September 16, 2016, ordering the School District to fully support its exemption claim to withhold the records. Accordingly, the School District is hereby ordered to provide Attorney Winters with the responsive records within ten (1 0) days, 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 end an electronic copy of this response to this office at pre@sec.state.ma.us. I rs, n A. Williams cc: Peter F. Winters, Esq.