Vidur Dhanda v. Longmeadow, Town of - Public Schools (SPR 20180500)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 30, 2018 SPRlS/500 Michelle Grodsky Town of Longmeadow-Public Schools Longmeadow School Committee 535 Bliss Road Longmeadow, MA 01106 Dear Ms. Grodsky: I have received the petition ofVidur Dhanda appealing the response of the Longmeadow School Committee (Committee) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 30, 2018 Mr. Dhanda referenced a March 28, 2018 Committee executive session and requested "a copy of the above-referenced executive session minutes and documents used therein." The Committee provided responsive minutes on April 11, 2018. The Committee provided additional records on April 13, 2018, but withheld a record under the attorney-client privilege. Purpose of request Based on the request and responses, it appears Mr. Dhanda is seeking records related to his child. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 3 71 Mass. 59, 64 (1976). Accordingly, Mr. Dhanda's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As 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

Michelle Grodsky SPR18/500 Page2 April 30, 2018 such, Mr. Dhanda may wish to consider another means of seeking to obtain any existing responsive records. 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, § lOA(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, § 1O (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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal In its April 11th response the Committee explains it "has determined that its response to you is governed by the Massachusetts student records regulations, 603 C.M.R. 23.00." In its April 13th response the Committee provided four categories of responsive records but also indicates "[t]he email from the Committee's legal counsel dated March 16, 2018 is being withheld as attorney-client privileged information." Mr. Dhanda is appealing the withholding of this document. Attorney Caroline Thibeault provided a response on April 30, 2018 in which she explains "[t]he portions of the Committee's 3/28/18 minutes pertaining to 'Unit A negotiations' and 'Residency issue' continue to be exempt from the definition of public records under 'Exemption (a)' to the Public Records Law and G.L. c. 30A, § 22(f)." She also notes that "Mr. Dhanda was able to obtain the 'Residency issue' portion of the minutes (and documents used during that portion of the meeting) because that discussion involved student record information about Mr. Dhanda's child." With respect to the withheld email from the Committee's legal counsel, Attorney Thibeault indicates "[i]f any other member of the public had made the same request ( excluding the student's mother), the 'Residency issue' portion of the minutes and the documents used during that portion of the meeting would have been withheld under the Open Meeting Law (because the purpose of the executive session is on-going) and the issue of the attorney-client privileged information would not have been reached."

Michelle Grodsky SPR18/500 Page 3 April 30, 2018 Open Meeting Law In his initial request to the Committee, Mr. Dhanda asserts "as the child's parent, disclosure to me will not defeat the purpose of the executive session." In light of this, as well as Attorney Thibeault's April 30th response regarding the lawful purpose of the executive session, I find the release of the withheld record at issue may raise issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the public status of the document at issue. See G. L. c. 30A, § 23. It is recommended that Mr. Dhanda contact the AGO should he seek a determination on this issue. Sincerely, ~.~ Supervisor of Records cc: Vidur Dhanda Caroline Thibeault, Esq.