Ilya Feoktistov v. Newton, City of - Public Schools (SPR 20190242)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 21, 2019 SPR19/0242 TobyN. Romer Assistant Superintendent for Secondary Education and Special Programs City of Newton - Public Schools Newton North High School 100 Walnut Street Newton, MA 02460 Dear Superintendent Romer: I have received the petition of Ilya Feoktistov appealing the response of the Newton Public Schools (Schools) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Feoktistov made two separate requests on October 31, 2018, and November 28, 2018. Mr. Feoktistov requested: " ... every single instructional and educational material that Bedar used in teaching any part of any of his MEALA classes since the inception of the MEALA electives, and right up to the day that he finishes compiling this production." "ALL curricular materials used to teach students in ALL courses taught by [NPS history teacher] David Bedar going back to the 2016-2017 academic year and to the present." The School provided responses on January 8, 2019, January 9, 2019, and January 10, 2019. Contending that responsive records were neither provided in their native form nor machine readable format, Mr. Feoktistov petitioned this office and this appeal, SPR19/0242, was opened as a result. While this appeal was pending, the School provided a supplemental response on February 15, 2019. 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 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

Superintendent Toby Romer SPR19/0242 Page 2 February 21, 2019 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, § lO(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, § 1O (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 January sth, 9th, and 10th responses In its January 8, 2019 response, the School, responding to Mr. Feoktistov's contention, explains that it " ... provided [him] all of the records for both of the related records sets requested in the form and organization that they were stored .... No documents have been reordered from the manner they were produced for our office. The documents are organized as the[y] were produced and they have simply been scanned in that order so as to be sent to [Mr. Feoktistov] electronically ...." The School stated that it was willing to answer questions Mr. Feoktistov might have regarding the documents. In its January 9, 2019 response, the School, responding to Mr. Feoktistov's claim that records were provided in "a single intermixed pdf file ... ," asserted that " ... the materials produced were fully responsive and organized in the most logical and/or feasible fashion." In its January 10, 2019 response, the School agreed to reissue the responsive documents in two separate files to eliminate any confusion. The Schools February 15th supplemental response In its February 15, 2019 supplemental response, the School asserts that Mr. Feoktistov's claim that records were not provided in its native form, under 950 C.M.R. 32.07(1)(d), is misplaced. The School explains that" ... Mr. Bedar, like many educators, does not have an organized hard file of curriculum materials for the courses he teaches. Rather, he has some hard copies of materials, some materials (in pdf form) stored on his computer, and some materials accessible through a link to an article on the internet. The curricular materials are even more fluid in the MEALA course as it is partially impacted by current political events. This is relevant as Mr. Bedar meticulously searched all of these locations to determine which materials he distributed to his students in these classes for the past 2+ years, and either copied or printed them out so they could be compiled for production. These documents were then scanned into a PDF file to be produced efficiently and in a machine-readable format to Mr. Feoktistov." The School reiterates that in an effort to cooperate with Mr. Feoktistov, it" ... separated the physical files by

Superintendent Toby Romer SPR19/0242 Page 3 February 21, 2019 the courses (MEALA and other US History courses), which [the School] determined based upon the content materials, and re-produced them to Mr. Feoktistov in 2 separate PDF files in response to his concerns." Providing records in electronic form In his appeal petition, Mr. Feoktistov claims that," ... [t]he single massive production is not machine-readable, does not include the original metadata of the original electronic files, is of poor quality, and seems to have been calculated to be as confusing as possible ... " Pursuant to 950 C.M.R. 32.07(1)(c), "[t]he records access officer shall presume that a requestor prefers copies provided in machine-readable electronic form, when electronic form is available ..." Also, "[a] records access officer shall presume a requestor prefers electronic copies and must provide electronic records in native form when possible." 950 C.M.R. 32.07(1)(d). Based on Mr. Feoktistov's claim, coupled with the School's responses, it is unclear whether it is possible for the School to provide records that are not originally stored in a pdf format in their native form. Further, in its February 15th supplemental response, the School states that" ... [t]hese documents were then scanned into a PDF file to be produced efficiently and in a machine readable format to Mr. Feoktistov." However, responding to the School's supplemental response, Mr. Feoktsistov claims that" ... [b]y printing and scanning the records, [the School] degraded the legibility of the documents and destroyed the ability of my computer to understand the information therein, in the sense that the text is no longer electronically-searchable." Based on Mr. Feoktistov's claim, I find the School must explain how it provided the records in a machine readable format. Pursuant to the Public Records Law, "[t]he records access officer shall, to the extent feasible, provide the public record in the requestor's preferred format or, in the absence of a preferred format, in a searchable, machine readable format." See G. L. c. 66, § 6A(d). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the School is ordered to provide Mr. Feoktistov 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: Ilya Feoktistov