Michael DiPronio v. Georgetown, Town of - Public Schools (SPR 20200774)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 27, 2020 SPR20/0774 Jack Tiano Records Access Officer Director of Student Services Georgetown School Department Office of the Superintendent 51 North 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, § 10A; 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 and used Georgetown School Department to write the program review.” Previous appeal This request was the subject of a previous appeal. See SPR20/0299 Determination of the Supervisor of Records (February 28, 2020). I closed SPR20/0299 by ordering the Department to provide Mr. DiPronio with a written response to the request, in a manner consistent with the order, the Public Records Law and its Regulations. The City provided a response on March 10, 2020. Unsatisfied with the response Mr. DiPronio appealed and SPR20/0774 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, § 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 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 SPR20/0774 Page 2 May 27, 2020 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 Department’s March 10th response In its March 10th response the Department stated through its legal counsel, Leigh W. Mello of Nuttall, McAvoy & Joyce, P. C. that “... Walker Consulting was not serving as an agent of the [Department] in conducting this [independent] review.” The Department further asserted that “…[ t]he Department did not exercise control over Walker Consulting or the parent surveys …in order to obtain an objective assessment of, and recommendations for, the [Department] [t]he special education program.” Current appeal In his appeal of May 12th, Mr. DiPronio provided a copy of the Memorandum of Agreement between the Department and Walker Consulting and asserted that an agency relationship exists because “the Department approved the parent survey before it was sent out to the parents” and the Department “had the opportunity to review and comment on the final report.” Public records; agency relationship 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, § 10(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. Based on the Department's response and review of the Memorandum of Agreement, it remains unclear whether there is an agency relationship between the Department and Walker Consulting. As such, I find that Department must provide additional information regarding the scope of the relationship between it and Walker Consulting in order to determine whether it has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request.

Jack Tiano SPR20/0774 Page 3 May 27, 2020 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 as soon as is 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. Sincerely, Rebecca S. Murray Supervisor of Records cc Michael DiPronio