Ilya Feoktistov v. Newton, City of - Public Schools (SPR 20190582)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 3, 2019 SPR19/0582 Toby N. 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, § 1O A; 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: 1. " ... every single instructional and educational material that [ an identified individual] 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." 2. "ALL curricular materials used to teach students in ALL courses taught by [NPS history teacher] ... going back to the 2016-2017 academic year and to the present." Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/0242 Determination of the Supervisor of Records (February 21, 2019). In my February 21st determination, I ordered the School to provide Mr. Feoktistov with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the February 21st determination, the School provided a response on March 5, 2019. Unsatisfied with the School's response, Mr. Feoktistov petitioned this office and this appeal, SPR19/582, was opened as a result. 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

TobyN. Romer SPR19/0582 Page 2 April 3, 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, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materi.als 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 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 5th response Machine readable format In its March 5, 2019 response, referring to other definitions of the term machine readable, the School states that the term " ... means that the text of document can be read by a computer and therefore, read by the person using a computer to open the file." The School also claims that "PDF (Portable Document Format) is highly accessible and supports a large variety of media, including text, fonts, images and graphics ...." The School asserts that" ... the PDF file that [it] has provided to [Mr. Feoktistov] is machine readable in that [he] can view the document, including its content, using a computer or other electronic device. Moreover, the PDF file that was provided is searchable." The School explains that "[t]he OCR (Optical Character Function) function of Adobe allows PDF documents to be converted to electronic searchable (and editable) form. OCR turns the image file into a machine-encoded text file, which renders it searchable. [The School] has confirmed that the PDF file provided to [Mr. Feoktistov] is searchable once converted using the OCR function in Adobe." The School states that it can provide Mr. Feoktistov with a version converted by the OCR function ifhe is unable to use the OCR function on Adobe to convert the PDF. Based on the School's response that it is willing to provide Mr. Feoktistov with a version converted by the OCR function ifhe is unable to convert the PDF, this office encourages both parties to communicate further to enable the School to provide Mr. Feoktistov with the responsive records if he prefers the records produced in that way.

Toby N. Romer SPR19/0582 Page 3 April 3, 2019 Records in native form In a cover letter dated March 22, 2019, the School also provided Mr. Feoktistov with additional electronic versions of materials which were not originally in pdf or hard copy form in their native form. In his appeal petition, Mr. Feoktistov claims, the School's" ... response to [SPR19/242] was also unsatisfactory." In light of the School's March 22nd letter, indicating that it provided Mr. Feoktistov with responsive records in their native form, it is unclear what the basis of Mr. Feoktistov's appeal is. Specifically, it is unclear with what Mr. Feoktistov is unsatisfied. Mr. Feoktistov is reminded that all petitions for appeal "shall specifically describe the nature of the requestor's objections to the response or failure to timely respond." 950 C.M.R. 32.08(1)(f). Accordingly, Mr. Feoktistov may clarify his objections to the School's response. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ilya Feoktistov