Joseph Smith v. North Adams, City of (SPR 20202137)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 18, 2020 SPR20/2137 Jessica Lincourt Records Access Officer City of North Adams 10 Main Street North Adams, MA 01247 Dear Ms. Lincourt: I have received the petition of Joseph Smith appealing the response of the City of North Adams (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 16, 2020, Mr. Smith requested “[a]ny email or otherwise written communication from the North Adams Public Schools administration to any city employee, administration member, or elected official which reveals/names the school within NAPS that had the reported student COVID-19 case which was revealed to the media on 10/08/20... all I ask to fulfill this request is the first communication you find that names the school which had the infection that was reported to the media on the 8th. I would suspect this should be easily found from a city health department email address, such as hdemarsico@northadams-ma.gov.” The City provided a response on October 20, 2020. Unsatisfied with this response, Mr. Smith petitioned this office and this appeal, SPR20/2037, was opened as a result. Subsequent to the opening of this appeal, both the City and the requestor have submitted responses to this office in regards to this appeal. Current Appeal In its October 20th response, the City states “[t]he North Adams Public School system has its own Records Access Officer. Because the information you requested is a school-related matter, I have forwarded your request to Superintendent Malkas and Director of Student Support Services Thomas Simon.” In an email sent to this office on November 5, 2020, the City states they “…forwarded his request to the school department administration (North Adams Public Schools a/k/a NAPS), since his request was for a written communication from NAPS administration…the record provided to Mr. Smith was a record that was in possession by both the school district and the city.” The record provided by the North Adams Public Schools (School) to Mr. Smith was redacted pursuant to Exemptions (a) and (c), including redaction of a school name. 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

Jessica Lincourt SPR20/2137 Page 2 November 18, 2020 In his appeal, Mr. Smith contends “…the North Adams city Health department should have a record, records which Ms. Lincourt is custodian for.” Further, Mr. Smith states in an email to the School on November 3, 2020, “…a school name is not ‘medical files or information’, which is why other school districts across the state have publicly named which school within their districts they have had an infection at and why DESE says the school name is supposed to be revealed to them.” Records in existence; burden of specificity I find that the City has not met its burden in responding to Mr. Smith’s 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). In light of Mr. Smith’s appeal regarding the existence of responsive records, and despite the City’s responses, I find it is unclear whether additional responsive records exist. Please be advised, under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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…”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Conclusion Accordingly the City is ordered to provide Mr. Smith with a response to his request, in a manner consistent with this order, 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: Joseph Smith