Ilya Feoktistov v. Newton, City of - Public Schools (SPR 20191530)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

August 14, 2019 SPR19/1530

Toby N. Romer

City of Newton — Public Schools Newton North High School

100 Walnut Street

Newton; MA 02460

Dear Mr. Romer:

I have received the petition of Ilya Feoktistov, Esq. appealing the response of the Newton Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32,08(1). Specifically, on June 13, 2019, Attorney Feoktistov requested “. . . any and all communications to and from [three identified School teachers] dated starting with June 13, 2018 and ending with the date you finish compiling the records responsive to this request.”

Previous appeal

The requested records were the subject of a previous appeal. See SPR19/1402 Determination of the Supervisor of Records (Supervisor) (July 30, 2019). In my July 30" determination, I indicated that it was unclear the basis of Attorney Feoktistov’s appeal and directed him to describe his specific objections to the School’s June 19" response. Attorney

_ Feoktistov clarified his objections to the School’s response and this appeal, SPR19/1530, 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, § 10A(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, § 10(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

Toby N. Romer SPR19/1530 Page 2 August 14, 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,

If there are any fees associated with a response a written, good faith estimate must be provided, G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records,

Current appeal

In his July 30" letter to the Supervisor of Records, Attorney Feoktistov clarifies that the School indicated in its fee estimate that it “. . . intends to withhold a specific category of records [because] .. . this category consists of ‘union business protected from disclosure under 150E as it operates through Exemption (a) of the Public Records Law, as held by the Supervisor of Public Records in determination 19/0581.’” Consequently, Attorney Feoktistov requests that the Supervisor “[1.] [rjeconsider [her] conclusion that G.L. c. 150E, § 2 operates in any way through Exemption (a). . . [and] [o]rder that [the School] produce any and all records [it] had intended to withhold under G.L. c. 150E, § 2 and Exemption (a) in response to [his] June 13, 2019 request.”

Reconsideration of SPR19/0581

With respect to Mr. Feoktistov’s request that the Supervisor reconsider her determination in the above referenced appeal, please note that pursuant to SPR Bulletin 04-17, a requestor may file a request for reconsideration within ten business days of the date of the Supervisor’s determination letter. See https://www.sec.state.ma.us/pre/prepra/significant-interest/SPR- Bulletin-04-17-Timefrarnes-forRecousiderations-and-In-Camera-Reviews.htm. Whereas my previous determination was issued on April 3, 2019, I find that Mr. Feoktistov’s July 30, 2019 request for reconsideration was not submitted within the stipulated time frame for submitting such requests.

Exemption under G. L. c. 150E, § 2

In the School’s June 19" fee estimate, the School claimed multiple exemptions as applicable to redact portions of the responsive records. Specifically, the School stated that “many of [the 15,000] emails may be exempt pursuant to student records laws, the privacy exemption (c) of the Public Records Law, and/or union business protected from disclosure under | SOE as it operates through Exemption (a) of the Public Records Law, as held by the Supervisor of Public Records in determination 19/0581.” Whereas the School is yet to produce the records, I find that Mr. Feoktistov’s appeal is premature and the matter cannot be addressed at this time as the contents of these records are unclear. Mr. Feoktistov may appeal the substantive nature of the School’s response within ninety calendar days. See 950 C.M.R. 32.08(1).

Toby N. Romer SPR19/1530 Page 3 August 14, 2019

Petitions to the Supervisor received after 4pm

In Mr. Feoktistov’s appel petition, you claim that the Supervisor’s July 30" determination was issued within 11 business days instead of the statutory 10 business days. Mr. Feoktistov is advised that pursuant to the Public Records Law, “petitions under 950 CMR 32.08 received before 4:00 P.M. shall be opened on the day of receipt. Petitions received after 4:00 PM shall be opened on the following business day.” 950 C.M.R. 32.08(2)q). Accordingly, whereas Mr. Feoktistov’s appeal petition was submitted on July 15, 2019 at 4:35 pm, your petition was received by this office on July 16, 2019. Therefore, the July 30" determination was in compliance with G. L. c. 66, § 10A(a).

Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, |

Rebecca S. Murray Supervisor of Records

cc: Ilya Feoktistov, Esq.