Joshua Dankoff v. Worcester, City of (SPR 20201201)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 31, 2020 SPR20/1201 Janice E. Thompson, Esq. Assistant City Solicitor City of Worcester 455 Main Street, Room 301 Worcester, MA 01608 Dear Attorney Thompson: I have received the petition of Attorney Joshua Dankoff appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Dankoff requested several categories of records, including policies and incident reports, related to the school district’s relationship with the local police department. The City responded on April 17, 2020, providing records responsive to several of Attorney Dankoff’s requests, and indicating that it does not possess records responsive to others. Attorney Dankoff’s appeal petition identifies two particular requests for which he believes the City may possess responsive records: #5. “Data concerning the number of incidents during each of the last three completed academic school years (2016-17, 17-18, 18-19), as well as during the ongoing school year to date (2019-2020) when a student’s behavior at school led to the student’s being reported to the local police department either through a school-related arrest or a referral from the school to local law enforcement. #6. Copies (redacted as necessary to protect student identity) of all school related incidents shared directly with the local police departments either through a school-related arrest or a referral from the school to local law enforcement.” Current Appeal In its April 17, 2020 response, the City indicated that it does not possess records responsive to the requests identified above. The City additionally noted that that school district “does not share school incident reports with law enforcement and the [district] does not make referrals to law enforcement.” 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

Janice Thompson, Esq. SPR20/1201 Page 2 July 31, 2020 In his appeal petition, Attorney Dankoff disputes that the City does not possess responsive records, and cites G. L. c. 71, § 37P(b), which provides, in pertinent part: “The superintendent and the chief of police shall enter into a written memorandum of understanding which shall ...describe the following: (viii) specify the manner and division of responsibility for collecting and reporting the school- based arrests, citations and court referrals of students to the department of elementary and secondary education in accordance with regulations promulgated by the department, which shall collect and publish disaggregated data in a like manner as school discipline data made available for public review.” G. L. c. 71, § 37P(b). Subsequent to the opening of this appeal, the City provided a supplemental response on July 30, 2020, confirming that it does not possess additional responsive records. The City states that “the School Department does not maintain the requested data regarding school based arrests. Also, the School Department does not share school incidents with local police departments. As stated in the initial response the School Department does not make referrals to law enforcement.” The City further explained that “juvenile arrest records…are maintained by the police department.” The City additionally provided a link to a database containing information submitted to the Department of Elementary and Secondary Education pursuant to G. L. c. 71, § 37P(b). No Duty to Create a Record Under the Public Records Law, a records custodian has no obligation to create a record in response to a public records request. 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, § 10(a)(ii). Accordingly, whereas the City has informed Attorney Dankoff that it has provided all responsive records in its possession, I will consider this administrative appeal closed. If Attorney Dankoff is not satisfied with the result of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Joshua Dankoff, Esq.

Janice Thompson, Esq. SPR20/1201 Page 3 July 31, 2020