Colman Herman v. Natick, Town of - Public Schools (SPR 20190748)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 25, 2019 SPR19/748 Timothy Luff Assistant Superintendent Office of Student Services Natick Public Schools 13 East Central Street Natick, MA 01760 Dear Mr. Luff: I have received a petition from Colman Herman appealing the response of the Town of Natick Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Mr. Herman sent a request to the School on March 25, 2019 requesting "any and all invoices for legal fees incurred by Natick Public Schools and the Natick School Committee for matters related to the public records requests, public records appeals, and open meeting law complaints filed" by an identified individual. Mr. Herman filed an appeal to this office on April 9, 2019 indicating that the School had failed to respond. 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 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. 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

Mr. Timothy Luff SPR19/748 Page2 April 25, 2018 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. Appeal The School previously sent an email to Mr. Herman in July 2018 concerning his request for the requested records stating it "has no invoices that are responsive to this request. Any expenditures for legal services for matters subject to this request specific to [the identified individual] are not noted within our invoices Further, costs associated with this request are minimal, as responses and work have been primarily completed by Natick Public School staff members." The School also explained in a December 26, 2018 email to Mr. Herman that the School cannot distinguish costs related to the specified individual. The School further explained the only cost it could provide was "the Open Meeting Mediation cost which was $3700." Mr. Herman responded via email on December 29, 2018 saying "[i]t is hard to imagine that no such expenses were incurred." The School responded on January 7, 2019 to Mr. Herman stating "[w]e have no specific category related to [the identified individual] in our legal invoices. Rather, when we have consulted our attorneys regarding him, those fees are embedded in general ongoing costs. The school district has not accrued any substantial legal fees regarding [the identified individual]. The majority of costs associated with [the identified individual] has been with my time. I have responded to all public requests and appeals, written the majority of the responses to the open meeting law complaints, and have been guiding the processes for the school district." On April 10, 2019, the School further confirmed "[w]e have no legal invoice or records that [are] responsive to this request. Our invoices do not in any way identify [the identified individual] or legal costs associated with your request." 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), (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). Conclusion Based on the School's responses, I find the School has met its burden in responding to Mr. Herman's appeal request. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. G. L. c. 66, § lOA.

Mr. Timothy Luff SPR19/748 Page 2 April 25, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman