Brian DeLacey v. Mystic Valley Regional Charter School (SPR 20190621)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 5, 2019 SPR19/621 Stephanie Solio Records Access Officer Mystic Valley Regional Charter School 4 Laurel Street Malden, MA 02148 Dear Ms. Solio: I have received the petition of Brian DeLacey appealing the response of the Mystic Valley Regional Charter School (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. DeLacey requested a copy of documents related to the "negotiation and purchase of the Malden Hospital land by the City of Malden in partnership with the Mystic Valley Regional Charter School." Prior appeal The responsive records were the subject of a prior appeal. See SPRl 9/0531 Determination of the Supervisor of Records (Supervisor) (March 20, 2019). In its February 26th response Matthew Campbell, Esq., the School's General Counsel, informed Mr. DeLacey that, "the School does not have in its possession, care, custody or control, any documents, electronic or otherwise, relating to a recently proposed purchase of Malden Hospital land." Attorney Campbell offered to provide records relating to a proposed land deal concerning Malden Hospital property circa 2001, though requested that Mr. DeLacey confirm that those were the records he was requesting and he asked that Mr. DeLacey provide a "statement of intent to pay the fees that would be incurred by the School by retrieving them." On March 6, 2019, Attorney Campbell informed Mr. DeLacey that "the School [had] searched [their] records concerning the proposed purchase of Malden Hospital property and [had] found Board [of Trustees'] minutes from 2001," and that the records were available to be picked up at Mr. DeLacey's convenience. Attorney Campbell also noted that "these minutes comprise the entirety ofrecords in the School's care, custody and control relating to [Mr. DeLacey's] records request." In response, Mr. DeLacey stated that he would "drop by and pick them up." 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

Stephanie Solio SPR19/621 Page 2 April 5, 2019 Given that the School had provided Mr. DeLacey with all the records responsive to his request in the School's custody, I closed adrninistrative appeal, SPR19/053I Current appeal It is my understanding that Mr. DeL acey received meeting minutes from 5/31/01; 6/14/01; and 6/25/01. After review of the meeting minutes Mr. DeLacey petitioned the Supervisor on March 23, 2019 and the current appeal was opened. In his petition Mr. DeLacey states, "[i]t seems reasonable to conclude more records should exist. In particular. .. : 1. The 6/15/01 minutes refer to a 'prior vote to seek the funding and authorize the school to bid for the purchase.' Minutes describing that earlier vote should have been provided; and 2. Records provided fail to describe the outcome of this major institutional initiative. For instance, an investment banker was voted to be retained by the School. Further statements of that momentous initiative could not have slipped away without further deliberation. Therefore, it is reasonable to expect more records should exist." As a result, the current appeal was opened. In a March 26, 2019 email after receipt of the current appeal file, Attorney Campbell informed a Public Records Division staff attorney, "[a ]s the exhibits indicate, the School turned over all the documentation it had regarding the requested Malden property. Although Mr. DeLacey was originally looking for items related to a 2019 proposal, our response indicated that we had some material from a 2001 proposal. As the proposal was 18 years old, the School was 3 years old when the proposal was made, and the School has made three moves since, the records regarding this unrealized proposed deal were limited to the Board of Trustees minutes that were eventually handed over to Mr. DeLacey." Mr. DeLacey posits, "[a ] further [d ]etermination could identify if minutes were a) never recorded, b) lost after they were recorded; or, c) overlooked and left out of my response. Such a [d ]etermination could likely indicate if there was a failure to comply with existing guidelines, such as 32.06 (Rights of Access) and/or state public records retention requirements." Records in its possession, custody and control; Records management and retention 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). In light of the issue raised by Mr. DeLacey's March 23rd appeal regarding the existence of responsive records, I find it is still unclear whether the School has additional meeting minutes and any other records that have not been provided. Specifically, the School must explain whether the responsive records existed and were destroyed or lost, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii), (b)(ii).

Stephanie Solio SPR19/621 Page 3 April 5, 2019 If such records were destroyed, the School must demonstrate whether it followed proper records retention protocol. Please note, all municipalities and agencies must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the School to review the Records Retention Manual, available online at: www.sec.state.ma.us/arc/arcrmu/rmuidex.htm. Conclusion Accordingly, the School is ordered to provide a response to Mr. DeLacey, 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: Brian DeLacey Matthew Campbell, Esq., General Counsel