Craig Swinson v. Richmond School District (SPR 20200474)

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

Rebecca S, Murray Supervisor of Records

March 18, 2020 SPR20/0474

Fernand J. Dupere, Esq. Dupere Law Offices

94 North Elm Street; Suite 307 Westfield, MA 01085 |

Dear Attorney Dupere:

I have received the petition of Craig Swinson appealing the response of the Richmond Consolidated School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, on February 11, 2020, Mr. Swinson requested a copy of:

1, The date(s) and documents related to the State’s action against the [S]chool with regards to [A]sbestos remediation, potential fines and litigation, and the report of where this [A]sbestos is located in the school;

2. Emails the administration sent to parents notifying them of an [A]sbestos problem in the school;

3. The dates the school committee convened meetings related to this topic; as [Craig Swinson] can find no agenda items listing Asbestos remediation as a topic in 2019. [Craig Swinson] believes [the school] said this State action took place over the Summer of 2019.

On March 4, 2020, Mr. Swinson petitioned the Supervisor of Records (Supervisor) for an appeal regarding his February 11" request. In his petition, Mr. Swinson states, “[a]l] that was presented were copies of the initial state report and fines, litigation, and settlement letter. My expectation is that the documents would also include emails; however, if that is not an appropriate assumption I can reform the request.”

Mr. Swinson’s petition also mentions he is seeking copies of agendas, meeting minutes and emails where the discussion of the Asbestos problem was discussed, and the settlement. It is unclear if Mr. Swinson has already requested the meeting agendas and minutes, as his February 11" request did not include these records.

I also note that Mr. Swinson did not provide this office with a copy of any response received from the School pertaining to his February 11" request. He does state that he received a

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

Fernand Dupere, Esq. SPR20/0474 Page 2 . March 18, 2020

February 25" email from the School, but that the records requested on February 11" are still outstanding,

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) (written response must “identify any records, categories of records or portions 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).

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.

In a March 18, 2020 email to this office, you explained that you are in the process of providing Mr. Swinson a further response to his February 10" request for “disclosure by a non- elected employee of financial interest and determination by appointing authority as required by G. L. c. 268A, § 19 as filed by Peter Dillon.” (This request is the subject of appeal SPR20/0487).

In a March 18"" reply email, a Senior Attorney in the Public Records Division informed you that it is unclear whether the School has provided Mr. Swinson with a further response to his February 11" requests, including any additional records since the School’s February 25" email response. Please note, the requested records are listed on Page | of this determination, and are the subject of this appeal, SPR20/0474. I find that the School must clarify its response to Mr. Swinson’s February 11" request. .

Conclusion

Accordingly, the School is ordered to provide Mr. Swinson with a response to his February 11, 2020 request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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.

Fernand Dupere, Esq. SPR20/0474 Page 3 March 18, 2020

Sincerely,

Rebecca S. Mu 4

rray Supervisor of Records

ce: Craig Swinson (via email) Peter Dillon, Superintendent