Ilya Feoktistov v. Newton, City of - Public Schools (SPR 20192300)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor of Records November 27, 2019 SPR19/2300 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, Esq., of Americans for Peace and Tolerance, appealing the response of the Newton Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifiq1lly, on August 15, 2019, Attorney Feoktistov requested" ... any and all communications, over any medium whatsoever, sent and/or received by [3 identified individuals] between August 15, 2018 and August 15, 2019 containing ... 1. Newton Teachers Association[;] 2. Teachers Association[;] 3. NTA[;] 4. MTA[;] 5. Salary[;] 6. Bargaining[;] 7. Contract[;] 8. Negotiations[;] 9. Ruthanne[;] 10. Fuller[;] 11. APT[;] [a nd] 12. Americans for Peace and Tolerance, or their grammatical derivatives ... " The School responded on August 26, 2019, providing a fee estimate. Upon payment of the fee on September 13, 2019, the School provided a response on September 27, 2019, which included responsive records in redacted form. The records were redacted pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the School's response, Attorney Feoktistov petitioned this office and this appeal, SPRl 9/2300, was opened as a result. Tlte Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all govermnental 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 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

Superintendent Romer SPR19/2300 Page 2 November 27, 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, § 1O (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 September 2111 response In its September 2 7, 2019 response, the School provided responsive records and indicated that" ... many of the emails were searched and, upon review, determined to be non-responsive, or to be exempt from disclosure pursuant to student records laws, the privacy exemption (c ) of the Public Records Law, and/or 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." Accordingly, the School stated that" ... two (2) of the responsive emails have been withheld from disclosure and many emails contain redactions for those portions of the emails that are exempt." It appears Attorney Feoktistov is only appealing the portion of the responsive records withheld and/or redacted under G. L. c. l 50E, the public employees' labor relations statute. Current appeal In his appeal petition, Attorney Feoktistov stated the following: "I am petitioning the SOR ... for a determination that [the School] violated M.G.L. c. 66 § 10, M.G.L. c. 4, § ?(Twenty-Sixth), and 950 CMR 32.00 when, in response to a public records request ... [the School] withheld records that [it] claimed constitute 'union business protected from disclosure under [M.G.L. c.] 150E as it operates through Exemption (a) of the Public Records Law, as held by the Supervisor of Public Records in determination 19/0581.' ('the alleged union business exemption')" Attorney Feoktistov also stated "I am also petitioning the SOR for an order that [the School] must produce all the records responsive to my August 15 request that have been withheld under the alleged union business exemption, which is based on a manifest error of law and therefore void." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or

Superintendent Romer SPR19/2300 Page 3 November 27, 2019 necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of paiiicular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute provides in relevant part: Home addresses, home and personal cellular telephone numbers, personal email addresses, dates of bilih, bargaining units and groupings of employees and emails or other communications between employee organizations and their members shall not be public records and shall be prohibited from disclosure except as provided in subclauses ( o) and (p) of clause Twenty-sixth of section 7 of chapter 4. G. L. c. 150E, § 5A(d). ' Where the requested records fall within the category of records as contemplated in the above statute, I find the School acted properly in withholding that portion of the requested records from disclosure under G. L. c. l 50E, as it operates through Exemption (a) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Feoktistov 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. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Supervisor of Records cc: Ilya Feoktistov, Esq.