Craig Swinson v. Richmond School District (SPR 20201415)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2020 SPR20/1415 Peter Dillon Superintendent Richmond School District 1831 State Road Richmond, MA 01254 Dear Superintendent 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, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 3, 2020, Mr. Swinson requested four categories of records: [1] RCS draft or preliminary Covid reopening plan as submitted to the state. [2] Any cover letters sent to the state or correspondence included with the submission of the document, requesting an extension, or clarifying the document. Understand that “it’s in the state guidance” and/or a link to state guidance is not an acceptable answer as I am looking for original plans created by the RCS administration. [3] Closing plans in the event of Covid positive cases in the school (if they are separate from the planning document). [4] The “ventilation report” or whatever document or report was referenced when it was said that RCS has [sic] “Excellent” or “very good.” The District provided a response. Unsatisfied with the District’s response, Mr. Swinson petitioned this office and this appeal, SPR20/1415, was opened as result. While this appeal was pending, the District provided a supplemental response dated August 24, 2020. This appeal pertains to item 4, the “ventilation report” only. 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 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

Superintendent Peter Dillon SPR20/1415 Page 2 September 1, 2020 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); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The District’s initial and August 24th responses In its initial response, the District indicates that the requested records are available on its website. In its August 24, 2020 supplemental response, the District provided the ventilation report responsive to Mr. Swinson’s request. In an email correspondence on August 24, 2020, Mr. Swinson states the following: I find it difficult to believe that there were no emails to commission this report, no contract, and that the report consists of one page with zero explanation. In looking at reports by this company to other clients the report is normally 10-15 pages long including corrective action and a preamble about what the readings and results mean. Again the request was for all documents and correspondence related to this report. That would include public documents as to costing, contract, emails related to decisions to engage in the contract, votes, and most importantly the entire report. I’ve been down this path before with this district, they submit minimal information, only to later be forced to admit there are dozens [i]f not hundreds of pages more of information. This is a recent report, the emails should be easily accessible, I again would like all correspondence related to this report and the actual full report. If that includes other districts, that’s fine as the juxtaposition of Richmond’s report in relation to tyer districts would be helpful. In Mr. Swinson’s August 3rd original request, he requested the “[t]he ‘ventilation report’ or whatever document or report was referenced when it was said that RCS has [sic] ‘Excellent’ or ‘very good.’” In his August 24th email correspondence, Mr. Swinson appears to expand his

Superintendent Peter Dillon SPR20/1415 Page 3 September 1, 2020 request and states that he requests “. . . all document and correspondence related to this report” to include “. . . public documents as to costing, contract, emails related to decisions to engage in the contract, votes . . .” Mr. Swinson is reminded that a requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. Whereas the request for “. . . all document and correspondence related to this report” was not made directly to the District’s RAO in Mr. Swinson’s original request, I decline to opine on that matter. If Mr. Swinson would like to obtain copies of these records, Mr. Swinson is advised that he should make a separate public records request to the District’s RAO. Mr. Swinson may then appeal the substantive nature of the District’s response within ninety calendar days. See 950 C.M.R. 32.08(1); see also Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, - - - - - at 2 (January 23, 2019) (holding that “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.”). Further, Mr. Swinson states “I find it difficult to believe . . . that the report consists of one page with zero explanation. In looking at reports by this company to other clients the report is normally 10-15 pages long including corrective action and a preamble about what the readings and results mean. . .” Based on Mr. Swinson’s claim, I find the District must confirm if the one page report provided in its August 24th response is the full ventilation report as requested by Mr. Swinson. 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). To the extent that additional records exist, I find the District must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the District is ordered to provide Mr. Swinson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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: Craig Swinson