Diane Vabulas v. Natick, Town of - Public Schools (SPR 20181162)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 17, 2018 SPRlS/1162 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, § IOA; 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." Previous appeal This request was the subject of a previous appeal. See SPRI 8/980 Determination of Supervisor of Records (July 18, 2018). I closed SPR18/980 ordering the School to explain whether it possessed responsive text messages, and if so if they were permissibly destroyed. On July 19, 2018 the School provided a response to Ms. Vabulas indicating it did not have "possession, custody, or control" of any records responsive to the request. Ms. Vabulas petitioned this office and this appeal, SPRl 8/1162, was opened as a result. Current appeal In its July 19th response, the School reiterates that "the records requested were not in the possession, custody, or control of the Natick Public Schools." The School indicates "School Committee members do not utilize Natick Public School's cell phones, nor do they have control of text messages from committee members' personal devices." Further, the School indicates that after speaking to Mr. Laurent "he stated that he did not have any text messages sent or received from his device on this date." Despite the School's July 19th response, it is unclear whether "his device" referred to in this response was his personal device; more specifically, it is unclear whether the School conducted a search of both his personal device and School-issued device, if any. Please note that 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 SPR18/1162 Page 2 August 17, 2018 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. See Mechling v. City ofMomoe, 152 Wn. App. 830, 845-47 (2009). I find 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. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 4, § 7(26). 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, § lO(a)(i). Conclusion 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 10 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 Vabulas