Diane Vabulas v. Natick Public Schools (SPR 20180980)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 18, 2018 SPRlS/980 Timothy Luff Assistant Superintendent Office of the Superintendent Town of Natick - Public Schools Natick, MA 01760 Dear Mr. Luff: I have received the petition of Diane Vabulas appealing the response of the Town of Natick Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 25, 2018, Ms. Vabulas requested "[c]ommittee member Paul Laurent's text messages sent during the June 20, 2018 S.C. meeting." The School provided a response on July 2, 2018 indicating the records are "not under the control of the Natick Public Schools, therefore we have no records responsive to this request." Contending the School does control records responsive to her request, Ms. Vabulas petitioned this office and this appeal 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, § 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. 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

Timothy Luff SPR18/980 Page2 July 18, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Content oft he record It should be noted that access to a record requested pursuant to the Public Records Law rests on the content of the record. "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, created or received by any officer or employee of any town of the Commonwealth to serve a public purpose, unless falling within a statutory exemption. G. L. c. 4, § 7(26). The School is advised that public records, including texts messages made or received in an individual's capacity as a government employee, must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289-90 ( 1979). Whenever original public records are created outside the municipal offices, they shall be transferred on a regular and frequent basis to secure storage in the municipal building. The use of personal phones by government officials, employees and/or board and commission members while conducting any day-to-day business of a government entity renders the messages public records. At least one Court has found that personal email addresses used for a public purpose by a government employee are a public record. See Mechling v. City of Momoe, 152 Wn. App. 830, 845-47 (2009) (personal email addresses used by City Council members to discuss city business are not exempt from disclosure under public disclosure statutes). Additional responsive records The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 1O (b )(ii) (w ritten response must "identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency"). Although the School asserts it does not have control of the requested records, it has not met the burden to explain whether or not the text messages sent or received by Mr. Laurent were in his capacity as a public official. The School must clarify ifthere are responsive text records from Mr. Laurent's personal cellular telephone discussing Natick government business that have not been provided. If the School maintains that the responsive records no longer exist, it must explain in writing its justification under the Public Records Law and the Municipal Records Retention Schedule (Schedule) for destroying the records. See G. L. c. 66, § IO(a)(i).

Timothy Luff SPR18/980 Page 3 July 18, 2018 Order Accordingly, the School is hereby ordered to provide Ms. Vabulas with a response to the request, explaining whether it possesses responsive text messages, and if applicable, whether the requested text messages were permissibly destroyed. This response must be 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: Diane V abulas