Brian DeLacey v. Mystic Valley Regional Charter School (SPR 20202521)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 5, 2021 SPR20/2521 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/.” Previous appeal The requested records were the subject of a previous appeal. See SPR20/2259 Determination of the Supervisor of Records (December 2, 2020). In my December 2nd response, I directed the School to explain how producing records constitutes creation of a record. Accordingly, I ordered the School to provide Mr. DeLacey with a response to his request. Following the December 2nd determination, on December 9, 2020, the School requested clarification regarding Mr. DeLacey’s request. As a result, Mr. DeLacey responded “[a]s a modification to my original request, in an effort to both limit the request and provide a further level of protective restriction, you may unselect - and thus not provide at this time - the following categories of records described in the attached graphic and my original request: [1] Page Profile Information[;] [2] Other Page Activity[;] [and] [3]Page Settings. . . . My intent is only to obtain those records which MVRCS has already made public.” Mr. DeLacey further clarified his request and stated “. . . I am interested in ALL of your MVRCS Facebook page records under the following checkbox items for the standard Facebook export function: Posts, Photos and Videos, Events, Stories, Jobs, Groups, Services, Likes and Reactions or Comments.” Subsequently, the School provided a response on December 15, 2020. Unsatisfied with the School’s response, Mr. DeLacey petitioned this office and this appeal, SPR20/2521, was opened as a result. 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 SPR20/2521 Page 2 January 5, 2020 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. The School’s December 15th response In its December 15, 2020 response, the School states “[p]lease be advised that the School has never accessed data from the ‘Facebook export function’, and is not inclined to do so upon request. Please be advised further that by requesting the School to export data from Facebook (a third party entity) you are requesting it to create a record. An agency is not required to create a record in response to a public record request. G.L. c. 66, § 6A(d).” Based on the School’s response, it remains unclear why producing responsive records on the School’s Facebook page constitutes creation of a record. Specifically, where the School created the Facebook page and disseminates information to the public through the page, it is unclear why it is creating a record and not only producing records that already exist and in its possession, custody, or control. 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). The School must clarify this issue. 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 SPR20/2521 Page 3 January 5, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian DeLacey