James W. Marsh v. City of Melrose Legal Department (SPR 20200854)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 9, 2020 SPR20/0854 Amy Lindquist, Esq. Assistant City Solicitor for School & Labor City of Melrose 360 Lynn Fells Parkway Melrose, MA 02176 Dear Attorney Lindquist: I have received the petition of James W. Marsh, Esq. of the Law Offices of James W. Marsh appealing the response of the City of Melrose Public School District (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Marsh requested: “…access to and the opportunity to copy all documents and communications related and/or referring to the so-called ‘Lincoln Engagement Project’ (the ‘Project’).” In addition, Attorney Marsh indicates, “[p]lease do not send any documents to be copied without our prior review of said documents and/or express request to copy such documents.” In a March 2, 2020 response, the District indicated that it was providing documents responsive to the request, and that the District was still reviewing emails and would supplement the response if responsive documents are discovered, as soon as its review is completed. Prior appeal The responsive report and any accompanying records, prepared by Ms. Kathy Vines who was a consultant hired by the District, was the subject of a prior appeal. See SPR20/0540 Determination of the Supervisor of Records (Supervisor) (March 27, 2020). On March 13, 2020, Attorney Marsh petitioned the Supervisor, and the prior appeal, SPR20/0540, was opened. In his March 13th petition, Attorney Marsh indicated that the District did not provide all the requested documents. Attorney Marsh states: “[a] report prepared by Ms. Kathy Vines (aka Kathy’s report as referenced in documents included in the District’s response) was not provided. The response also failed to provide any notes, data, summaries, or any other document prepared by Ms. Vines from the focus groups and in-person interviews she conducted in April and May of close to 50 members 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

Amy Lindquist, Esq. SPR20/0854 Page 2 June 9, 2020 of the [Lincoln] Staff from Jenny Corduck and Kathy Vines (also included in the District’s response).” In my March 27th determination, I found that the District had not met its burden in responding to Attorney Marsh’s request. The District was ordered to provide a response to the request that identifies the records it has in its possession, custody and care that are responsive to Attorney Marsh’s request and are being withheld under an exemption in the Public Records Law. Current appeal On April 1, 2020, the City provided Attorney Marsh with a response. With its April 1st response, the City provided additional documents responsive to Attorney Marsh’s request; however, it was still unable to locate the requested focus group report. Your April 1st response to Attorney Marsh states, “[t]he District has searched the Lincoln physical files, electronic records including the former Principal’s [G]oogle account and cannot locate a copy of the document. That document is no longer in the custody of the [School District]. The [District] has provided all documents that are currently in its possession, custody or control that are responsive to your request.” After this appeal was opened, the City provided a June 3, 2020 supplemental response. The City states that all records within its possession, custody and control were provided to Attorney Marsh. In your June 3rd letter, you assert: “[t]he report prepared by Ms. Kathy Vines of Clever Girl Organizing, Inc. is no longer in the possession, custody and control of the District. The District does not have the legal authority to order a third party independent contractor, that no longer has a current contract with the District, to produce records in response to a public records request. Attorney Marsh has not asserted any authority, pursuant to the Public Records Law, requiring the District to produce records that are no longer in the possession, custody or control.” Records Management The District is advised that a custodian of records has an affirmative duty to maintain, secure, and preserve governmental records throughout the records life cycle. As such, safeguards must be instituted by the District 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, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records management and retention, the District may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. In addition, training workshops on records management may be conducted upon request.

Amy Lindquist, Esq. SPR20/0854 Page 3 June 9, 2020 Please note, 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). - - - - - Further, the District is reminded 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 Comm. 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). Consequently, whenever original public records are created outside the municipal offices, they must be transferred on a regular and frequent basis to secure storage in the municipal building. See Office of the Secretary of the Commonwealth of Massachusetts, Pub. Records Div., A Guide to the Massachusetts Public Records Law; see also G. L. c. 66, § 1. Even where it is necessary to keep original public records in a location other than the municipal building, the records access officer has a duty to maintain copies of those records within the municipal building and make the public records available in a location convenient to the general public for inspection and copying. Id. Therefore, I find the District must demonstrate whether it followed proper records retention protocol pertaining to the requested records. Conclusion Accordingly, the District is ordered to provide Attorney Marsh with a response to the 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: James W. Marsh, Esq., Law Offices of James W. Marsh