Lisa Scher v. Brookline, Town of - Public Schools (SPR 20201783)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2020 SPR20/1782; SPR20/1783 Suzanne McCormick-de Boer Records Access Officer Town of Brookline Public Schools 333 Washington Street Brookline, MA 02445 Dear Ms. McCormick-de Boer: I have received the petition of Lisa Scher appealing the response of the Town of Brookline Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). SPR20/1782 On August 3, 2020, Ms. Scher requested records from September 1, 2019 through August 3, 2020, specifically: “[a]ny communications, in whatever form it takes, including to but not limited to emails, memos, recordings, etc. that names or references [Ms. Scher] between: Faith Dantowitz and any administrator for PSB; Linda Monach and any administrator for PSB; The Office of Civil Rights and any administrator for PSB; [a]ny PSB administrator and any third party; [a]ny communications within PSB.” [School’s Req. No. 2020-0031]. SPR20/1783 On August 15, 2020, Ms. Scher requested records from March 1, 2019 through August 15, 2020, specifically: “emails, documentation, correspondence and the like between any of the following individuals: Suzanne Federspiel; David Pearlman; Casey Ngo-Miller; Linda Monach; Faith Dantowitz; Co-Chairs Brookline SEPAC; related any and all of the following or any investigation concerning said person.” [School’s Req. No. 2020-0048]. 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

Suzanne McCormick-de Boer SPR20/1782; SPR20/1783 Page 2 October 7, 2020 The School provided records responsive to Ms. Scher’s August 3rd and August 15th requests; however, Ms. Scher petitioned the Supervisor of Records (Supervisor) contending she did not receive all the requested records that may be in the School’s possession. As a result, this office opened appeals SPR20/1782 (School’s ref. no. 2020-0031) and SPR20/1783 (School’s ref. no. 2020-0048). In her petition to the Supervisor, Ms. Scher indicates that there are more records that exist for both of her requests, and that she has been unable to receive them. She asserts, “I know this, because I have some emails that fall within my requests, but they were not provided to me by the [School]. 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 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). Based on the communications provided by Ms. Scher, it is unclear whether the School has withheld any records under an exemption in the Public Records Law or under a common law privilege; such as the attorney-client privilege. The School must clarify this issue by providing Ms. Scher with a response. In Ms. Scher’s August 23, 2020 email addressed to you, and with regard to her request for the records under the School’s reference no. 2020-0031, Ms. Scher listed examples of communications that she believes have not been provided. Ms. Scher also indicated that she is aware of additional correspondence and records in reference to herself, and that were not provided. It is unclear whether the School has additional records responsive to these requests. I encourage the parties to communicate and continue to work together to provide any further responsive records in the School’s possession. Conclusion

Suzanne McCormick-de Boer SPR20/1782; SPR20/1783 Page 3 October 7, 2020 Accordingly, the School is ordered to provide Ms. Scher with a response to the request in compliance with the Public Records Law and its Regulations within 10 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: Lisa Scher