Jorge Teixeira v. Hudson, Town of - Public Schools (SPR 20171725)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 2, 2018 SPR17/1725 Superintendent Marco Rodrigues Town of Hudson -Public Schools 15 5 Apsley Street Hudson, MA 01749 Dear Superintendent Rodrigues: I have received the petition of Jorge Teixeira appealing the response of the Town of Hudson Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Teixeira requested "all documentation that proves mismanagement of funds/bank account by the previous SEP AC Board" (Board). Previous appeal This request was the subject of a previous appeal. See SPR17/1614 Determination of the Supervisor of Records (November 22, 2017). I closed SPR17/1614 with the proviso that the School provide Mr. Teixeira with a response to the request in a manner consistent with the order, the Public Records Law, and its Regulations. After the November 22, 2017 determination, the School provided a response dated December 1, 2017. Unsatisfied with the School's response, Mr. Teixeira petitioned this office and this appeal, SPR17/1725, was opened as a result. 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, § IOA(d); 950 C.M.R. 32.03(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, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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 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 ·

Superintendent Rodrigues SPRl 7/1725 Page2 January 2, 2018 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 a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The School's December 1st response In its December 1st response, the School continues to reiterate that "the [Board] and the School Committee are two separate legal entities" and asserts that "[t]he Hudson School Committee is not in possession of any records relating to your request. ..." No duty to create records; agency relationship Under the Public Records Law, the School is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). In the School's December 1st response to Mr. Teixeira, the School confirms it does not possess records responsive to this request and that the Board and the School are two separate entities. However, Mr. Teixeira contends that although the Board and the School are two separate entities, "the [Board] is still governed under the School. ... " In Guidance For Special Education Parent Advisory Councils, a document attached to Mr. Teixeira's appeal, a reference is made to M. G. L. c. 71B § 3 which states," ... [t]he School Committee of any City, town, or school district shall establish a parent advisory council on special education .... The parent advisory council duties shall include but not limited to: advising the school committee on matters that pertain to the education and safety of students with disabilities; meeting regularly with school officials to participate in planning, development, and evaluation of the school committee's special education programs ...." In light of the above information, it is unclear how the Board is not under the control of or supervised by the School. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607-08 (1996) (discussing agency relationship between a public and private entity within the context of the Public Records Law). Accordingly, the School must explain if there is an agency relationship between the School and the Board. I understand a Public Records Division staff attorney contacted your office about this appeal. Order Accordingly, the School is hereby ordered to provide Mr. Teixeira with a response to the

Superintendent Rodrigues SPRI 7/1725 Page 3 January 2, 2018 request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Jorge Teixeira