Natick Foia v. Natick, Town of - Public Schools (SPR 20180985)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2018 SPRlS/985 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 "Natick Foia" appealing the response of the Natick Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on March 6, 2018, the requestor requested the following records: 1. "[a ]ny and all contracts/agreements, inclusive of addendums, modifications, and terminations and any supporting documents related to [ an identified individual] covering the period 01/01/2013 to present." 2. "[r]ecords of any and all financial disbursements from the Town of Natick ... to [an identified individual], for the period 01/01/2018 to present. Please disclose if any money is still owed to ... which has yet to be disbursed." 3. " ... any and all text messages sent or received by telephones, cellular telephones, or other electronic devices used by the Superintendent of [the School] ... for the period 01/01/2016 to present." 4. " ... any other messages sent or received by [an identified individual] utilizing other messaging programs (i.e. Lyne, skype, outlook messaging etc.) for the period 01/01/2016 to present." On March 30, 2018, the School provided a response which included responsive records and indicated that it did not possess portions of the responsive records. Unsatisfied with the School's response, the requestor petitioned this office and this appeal, SPR18/985, 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 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 SPR18/985 Page2 July 17, 2018 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. 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. The School's March 20th response In its March 20, 2018 response, the School indicated that it would provide records pertaining to requests 1 and 2 on April 10, 2018 and also indicated that with respect to requests 3 and 4 the ". . . School does not have records responsive to [these] request[ s]." Status as a public employee; additional responsive records The School is reminded that the definition of a "public record" in Massachusetts 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 the Commonwealth to serve a public purpose, unless it falls within a statutory exemption. G. L. c. 4, § 7(26). This definition does not distinguish between records. Rather, the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes "public records." Further, a public employee has a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985). As such, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). The School is advised that public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r 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.

Timothy Luff SPR18/985 Page 3 July 17, 2018 Based on the foregoing, it is unclear how the School does not possess records responsive to requests 3 and 4. The requestor claims "[t]he texts requested were sent/received on a Town issued cell phone and computer .... The phone and computer were returned to the Town at the time of the employees [sic] separation." The School is reminded that 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 ofrecords at the time of the request. See G. L. c. 66, § 1O (a)(ii). Although the School provided some responsive records, based on the School's response, together with the requestor's petition for appeal, it is unclear whether the School possesses additional responsive records. The School must confirm whether it possesses additional records. Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10( a). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this determination. Conclusion Accordingly, the School is ordered to provide the requestor with a response to the 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: "Natick Foia"