Gerard F. Mackin, Jr. v. Weymouth, Town of - Public Schools (SPR 20181799)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen'isor ofR ecords December 3, 2018 SPRlS/1799 Dr. Jennifer Curtis-Whipple Superintendent Weymouth Public Schools 111 Middle St. Weymouth, MA 02189 Dear Dr. Curtis-Whipple: I have received the petition from Attorney Gerard·F. Mackin, Jr. appealing the nonresponse from the City of Weymouth's Public Schools (School) regarding a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Originally, Attorney Mackin sent a request to the School on October 30, 2018 requesting records concerning "all communications between Susan Kustka and any other person or persons relating to the contents or sending of an email sent by S. Kustka to Kevin Mackin at 11 :04 A.M. on Aug. 24, 2018." In an email on November 15, 2018, Attorney Mackin made an appeal to this office stating the School has not produced responsive records. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days ofreceipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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, § I O(a)(ii), (b )(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § I O(b)(iii). 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) (written response must "identify any records, categories of records or portions ofrecords that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific 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

Dr. Jennifer Curtis-Whipple SPR18/1799 Pg. 2 December 3, 2018 exemption or exemptions upon which the withholding is based ... "); 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). It is unclear if the School possesses the records requested by Attorney Mackin concerning School records stated above. See G. L. c. 66, § lO(a)(ii), (b)(ii), (iii). 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, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or · municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b) (iii). If the records are within the School's possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § 1O (b )(iv) ( custodian has the burden of establishing the applicability of an exemption). Accordingly, the School is ordered to review the requests made by Attorney Mackin and provide any requested records in accordance with the Public Records Law, its Access Regulations and this order 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: Gerard F. Mackin, Jr., Esq.