Craig Swinson v. Richmond School District (SPR 20200562)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 2, 2020 SPR20/0562 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 (the District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 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. Prior appeal The responsive records were the subject of prior appeal. See SPR20/0474 Determination of the Supervisor of Records (Supervisor) (March 18, 2020). In my March 18th determination, I found it was unclear whether the School has provided Mr. Swinson with a further response to his February 11th requests, including any additional records since the School’s February 25th email response. I ordered the School to clarify its response to Mr. Swinson’s February 11th request by providing him with a further response to his February 11th request. 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 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 J. Dupere, Esq. SPR20/0562 Page 2 April 2, 2020 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). The School’s March 30, 2020 response By email on March 27th, the School, through you as its Legal Counsel, provided all the responsive documents to Mr. Swinson’s February 11th request to the School. You state in your March 30th letter to a Senior Attorney in the Public Records Division: “[t]he documents submitted were the records in the possession, custody and control of the custodian [of] records at the time of the request. See G. L. c. 66, § 10(a)(ii). No records are known to have been destroyed. The requestor could also submit a request to the Commonwealth of Massachusetts, Executive Office of Labor and Workforce Development, Department of Labor Standards, One Federal Street, Building 101-3, Springfield, Massachusetts.” You also informed Mr. Swinson regarding your March 27th production of records, “[w]ith the documents was [a] letter from Robert R. Putnam, Co-Director of Teaching and Learning and Steven Soule, Director of Operations, that they had sent to my office all documents in the possession of the [School] concerning Mr. Craig Swinson’s public records request of February 11, 2020.” See G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.06(3)(c)(2). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Based on the School’s March 30th response and March 27th production of records, I find that the School has met its burden of responding to Mr. Swinson’s February 11th response and this appeal. Conclusion Accordingly, whereas the School provided Mr. Swinson with the records responsive to his request, I consider this administrative appeal closed.

Fernand J. Dupere, Esq. SPR20/0562 Page 3 April 2, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Peter Dillon, Superintendent Craig Swinson