Paul Sullivan v. Framingham, City of - Public Schools Department (SPR 20190446)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 7, 2019 SPR19/446 Nancy Piasecki Executive Director of the Office of the Superintendent Framingham Public Schools 73 Mt. Wayte Ave., Suite 5 Framingham, MA 01702 Dear Ms. Piasecki: I have received the petition of Paul Sullivan appealing the response of the Framingham Public Schools (School/City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on November 5, 2018 Mr. Sullivan requested" ... a copy of all 'grants' applications received and all approved including the value from the Framingham High School Foundation for the last 3 years. My understanding is the Principal of the high school must approve all of these however if there are others approved by the assistant principal and Athletic director without the principal' s approval I would like these as well." Previous appeal This request was the subject of a previous appeal. See SPR 18/1694 Determination of the Supervisor of Records (November 28, 2018). In my November 28th determination I ordered the School to provide a response to Mr. Sullivan in a manner consistent with the determination, the Public Record Law, and its Regulations. The School responded on December 17, 2018. Mr. Sullivan appealed and SPRl 9/446 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, § 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 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

Nancy Piasecki SPR19/446 Page 2 March 7, 2019 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. G. L. c. 66, § IO(b)(iv). Current appeal In a November 9, 2018 response the School asserted "[t]he Framingham High School Foundation is a separate entity from the Framingham High School and the School Department is ih not in possession of this information." In the December 1 response from Attorney Philip Benjamin, the School asserts "[t]he Framingham High School Foundation is a separate legal entity from Framingham High School and Framingham Public Schools. It is a parent run 501 ( c )3 organization. It has its own Board of Directors and Bylaws. This information can be found on its website." Attorney Benjamin also notes that "[a]s pointed out by Mr. Sullivan, in order to submit a grant application, it is necessary for the applicant to have the High School Principal and Vice Principal or Athletic Director sign off on the application. However, the decision making and control of the grant application is in the hands of the Foundation, not the High School or Framingham Public Schools. " With respect to whether the School possesses responsive records, Attorney Benjamin indicates "[i]n response to Mr. Sullivan's request for grant applications, please be informed that neither the High School Principal nor the Vice Principal or Athletic Director keep copies of the grant applications, nor do they keep copies of the grants or any other records associated with the grants. As a result neither Framingham High School nor Framingham Public Schools has the requested documents in their possession." I understand that you provided Mr. Sullivan a copy of "the Framingham High School Foundation - Year End Report (July 2016 - June 2017)." In his appeal petition Mr. Sullivan indicates "[t]he [C]ity stated that they have no records in their possession however when I filed a public record request for the emails between the administration personnel who receive and approve grants I received a response that there are over 700 documents the [C]ity does have in its possession. Since the administrators are the only people allowed to approve the grants of this group it is certain the documents contained in the emails requested contain copies of the grants requested and approved by the administration." He notes that "I believe copies of the grants I requested are residing in the emails of the staff I made the request of. Therefore the [r ]ecords custodian did not provide the documents in the possession of the [C]ity of Framingham." Mr. Sullivan also raises issues about the attorney-client privilege. Subsequent to the opening of this appeal, the School provided a supplemental response on March 7, 2019. In this response, Attorney Benjamin explains the School responded to a separate request from Mr. Sullivan for emails between Framingham High School and the Framingham High School Foundation by informing him there were approximately 700 responsive emails. Attorney Benjamin further indicates "Mr. Sullivan states in his February 21, 2019 appeal, his assumption that there must have been copies of the grant applications in those emails. This [] assumption on his part is not correct. The persons involved inform me that the

Nancy Piasecki SPR19/446 Page 3 March 7, 2019 grant applications were handled on paper and there were not copies of the grant applications in those emails. Framingham repeats its prior response that it did not keep copies of the grant applications. As a result it does not have the requested documents in its possession." He also notes the School has not claimed exemptions with respect to the records at issue in this appeal. In response, Mr. Sullivan emailed this office on March i 11 by indicating" ... I don't agree with the attorney's claims these are paper copies only" and he provided a record that he claims" ... shows the document must be emailed to the Framingham Foundation and only an email address is provided." He also notes "[t]he School claims they did not keep paper copies I can totally understand this, but it would be a violation of many policies etc and the state finance laws not to mention federal title 9 laws do not keep or be able to access approval of these gifts to the school." Please note 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, § lO(a)(ii). In light of the issues raised in Mr. Sullivan's March J111 email, I find the School must clarify whether responsive records exist in an email or paper record. See G. L. c. 66, § lO(a)(ii), (b)(ii). If such records no longer exist, the School must demonstrate whether it followed proper records retention protocol. G. L. c. 66, § § 1, 8, 13. I advise the School to review the Records Retention Manual, available online at www.sec.state. . ma.us/arc/arcrmu/rmuidx.htm. Conclusion Accordingly, the School is ordered to provide a response to Mr. Sullivan in a manner consistent with this determination, the Public Record Law, and its Regulation within 10 business days. A copy of 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: Paul Sullivan Philip Benjamin, Esq.