Brian DeLacey v. Mystic Valley Regional Charter School (SPR 20202259)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2020 SPR20/2259 Stephanie Solio Mystic Valley Regional Charter School 4 Laurel Street Malden, MA 02148 Dear Ms. Solio: I have received the petition of Brian DeLacey appealing the response of the Mystic Valley Regional Charter School (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 2, 2020, Mr. DeLacey requested “. . . a copy of all records published to your MVRCS Facebook page, at the URL https://www.facebook.com/mvrcs/.” On November 13, 2020, the School provided a response. Unsatisfied with the School’s response, Mr. DeLacey petitioned this office and this appeal, SPR20/2259, was opened as a result. 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); 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. 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

Stephanie Solio SPR20/2259 Page 2 December 2, 2020 The School’s November 13th determination In its November 13, 2020 response, the School states “[p]lease be advised that the School does not catalog, index, or record items it publishes on its website. Please be advised that an agency is not required to create a record in response to a public record request. G.L.c. 66, § 6A(d).” The School is reminded that the definition of a “public record” in Massachusetts 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 the Commonwealth to serve a public purpose, unless it falls within a statutory exemption. G. L. c. 4, § 7(26). This definition does not distinguish between records. Rather, the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes “public records.” The School is also advised that public records must be maintained and kept in a manner that allows access by the 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). ------------------------------ 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. Based on the School’s response, it is unclear why producing responsive records constitutes creation of a record. 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). Also, in accordance with the Public Records Law, a custodian is expected to use their superior knowledge of the records in their custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.04(5). In his appeal petition, Mr. DeLacey states “[t]he MVRCS response fails to include the required name/s of any RAO: ‘An RAO’s response . . . must provide the name of the RAO.’ . . . A review of the website at mvrcs.com suggests this information is not conspicuously posted.” Please note that according to the Public Records Law, “[e]ach agency and municipality shall post in a conspicuous location at its offices and on its website, if any, the name, title, business address, business telephone number, and business email address of each records access officer. . . .” G. L. c. 66, § 10(A)(c). Conclusion Accordingly, the School is ordered to provide Mr. DeLacey with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Stephanie Solio SPR20/2259 Page 3 December 2, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian DeLacey