Sammy Nabulsi v. Longmeadow, Town of - Public Schools (SPR 20191650)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 27, 2019 SPR19/1650 Dianne Georgantas Administrative Assistant Longmeadow Public Schools 535 Bliss Road Longmeadow, MA O1 106 Dear Ms. Georgantas: I have received the petition of Sammy Nabulsi, Esq. appealing the response of the Longmeadow Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Nabulsi requested 5 categories ofrecords related to other public records requests and communications related to certain circumstances involving the Superintendent. The School responded by providing records with portions redacted under Exemptions (a), (c), (d), (o) and the attorney-client privilege. G. L. c. 4, § 7(26)(a), (c), (d), (o). Previous appeal This request was the subject of a previous appeal. See SPRl 8/249 Determination of the Supervisor of Records (May 21, 2019); SPR18/1187 Determination of the Supervisor of Records 11 (June 27, 2019). In my June 2i determination I ordered the School to provide Attorney Nabulsi with a response in a manner consistent with the order, the May 21st order referenced above, the Public Records Law and its Regulations. The School responded in a letter dated July 10, 2019. Attorney Nabulsi appealed and SPRl 9/1650 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). One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Dianne Georgantas SPR19/1650 Page 2 August 27, 2019 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. Current appeal The School has provided various responses to the request, including on January 18, 2019, 111 February 6, 2019, and March 11, 2019. The School's February 6 response included redacted responsive records and cited Exemptions ( a), ( c ), ~ d), ( o) and the attorney-client privilege in support of the redactions. The School's March 11 t1 response provided supplemental information regarding its exemption claims and includes indices that describe the basis of the redactions on each page. In my May 21st determination I found the School had not met its burden to show how the above referenced exemptions apply to the responsive records. In its July 1o th response, sent on behalf of the School by Attorney Regina Williams Tate of Murphy, Hesse, Toomey & Lehane, LLP, Attorney Tate indicates "I have completed my review of all the documents provided by Valerio, Dominiello and Hillman, LLC which were compiled in response to Ms. Doty's public records request and which are responsive to that request. On behalf of Longmeadow, I have determined all the records will be provided to you without redaction. Further, none of the records will be withheld based upon privilege or exemption under the Public Records Law." In his appeal petition Attorney Nabulsi explains that he received a box of documents on July 18, 2019, however, he indicates "[n]either Attorney Tate nor the district provided these documents to us electronically." Attorney Nabulsi argues that "[t]he July 18, 2019 production violates the Public Records Law and its implementing regulations because several documents that have been scanned and printed by the district are now entirely unreadable. Had the district complied with its obligations under the Public Records Law, the documents would have been provided to us in their native format and in a form that is readable." Attorney Nabulsi provides examples of "unreadable documents" and asserts " [t ]he Supervisor should issue an additional order compelling the district to provide the entire production electronically and in machine readable format." Production ofr ecords electronically G. L. c. 66, § 6A(d ) provides the following in pertinent part: The records access officer shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form. The records access officer shall, to the extent feasible, provide

Dianne Georgantas SPRI9/1650 Page 3 August.27, 2019 the public record in the requestor's preferred format or, in the absence of a preferred format, in a searchable, machine readable format. As Attorney Nabulsi notes, the School did not provide the responsive records electronically. The School must provide the records by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form. See G. L. c. 66, § 6A( d). It is unclear why the School cannot make the records available in electronic form. Further, as mentioned in the appeal petition, Attorney Nabulsi did not provide the School a preferred format for the production of records; however, G. L. c. 66, § 6A(d ) states that in the absence of a preferred format, a records access officer must, to the extent feasible, provide the records in a searchable, machine readable format. It is unclear whether it is feasible for the School to provide the responsive records in a searchable, machine readable format. The School must clarify these matters and, to the extent feasible, provide the responsive records electronically in a searchable, machine readable format. Conclusion Accordingly, the School is ordered to provide Attorney Nabulsi a response 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: Sammy Nabulsi, Esq. Regina Williams Tate, Esq.