Craig Swinson v. Richmond School District (SPR 20200519)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 24, 2020 SPR20/0519 Peter Dillon Richmond School District 1831 State Road Richmond, MA 01254 Dear Mr. Dillon: I have received the petition of Craig Swinson appealing the response of the Richmond School District (District) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on February 25, 2020, Mr. Swinson requested seven categories of records pertaining to "AHERA." On March 10, 2020, the District responded indicating "[t]he particular requested information does not exist." Unsatisfied with the District's response, Mr. Swinson petitioned this office and SPR20/0519 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). 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 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) (c ustodian has the burden of establishing the applicability of an exemption). Current Appeal In his appeal, Mr. Swinson states "[s]aying that a person is the contact for AHERA compliance without providing the appropriate documentation per 40 CFR 763.84(g)(l) and (2);and 763.93(i)] is useless. 'The LEA must designate a person to ensure that the AHERA 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

Peter Dillon SPR20/0519 Page 2 March 24, 2020 responsibilities are met ... must receive adequate training to fulfill the duties assigned under AHERA, and sign a statement which includes the Designated Person's name, address, phone number, email, and training information. This must be maintained in the management plan, and updated as personnel changes.'" Mr. Swinson fmiher indicates "I would expect that along with the name, the contact information would include a copy of the signed statement, with address, phone number, email, and training information, and date of appointment." Records in existence The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). In light of the issues raised in Mr. Swinson's appeal regarding the existence of responsive records and the requirements under AHERA, I find it is unclear why responsive records under AHERA have not been provided. Specifically, the District must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 1O (a)(ii), (b )(ii). If such records were destroyed, the District must demonstrate whether it followed proper records retention protocol. Please note, the District must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the District to review the records retention materials available online at www.sec.state.rna.us/arc/arcrmu/rmuidx.htm. Order Accordingly, the District ordered to provide Mr. Swinson with a response 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. Mr. Swinson may appeal the substantive nature of the District's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~- Rebecca S. Murray Supervisor of Records cc: Craig Swinson