Michael DiPronio v. Georgetown, Town of - Public Schools (SPR 20200299)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 28, 2020 SPR20/0299 Jack Tiano Records Access Officer Director of Student Services Georgetown School Department Office of the Superintendent 51 N01ih Street Georgetown, MA 01833 Dear Mr. Tiano: I have received the petition of Mike DiPronio appealing the response of the Georgetown School Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on February 16, 2020, Mr. DiPronio requested, "[c]opies of the completed parent surveys conducted by Walker Partnership" for the Department program review. Unsatisfied with the Department's response, Mr. DiPronio petitioned this office and as a result, SPR20/0299 was opened. 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) (written response must "identify any records, categories of records or p01iions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). 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

Jack Tiano SPR20/0299 Page 2 February 28, 2020 The Department's February 1'1'" response In its February 17111 response the Department stated that "[t]he actual responses to the parent surveys were done online and compiled by Walker Partnerships ... [and] [the Department] ... was not given these surveys, just the results." Public records; agency relations/tip Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § IO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). The Department is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Consequently, based on the Department's response it is unclear whether there is an agency relationship between the Department and Walker Partnerships. As such, I find that the Department must provide additional infmmation regarding the relationship between it and Walker Paiinerships in order to determine whether it has met its burden under G. L. c. 66, § IO(a)(ii) to provide records that are in the possession, custody, or control of the custodian ofrecords at the time of the request. Order Accordingly, the Department is ordered provide Mr. DiPronio with a response to the request in a manner consistent with this order, the Public Records Law, 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, ~ r a ~ Supervisor of Records cc: Mike DiPronio