Martin Y. Benson v. Acton-Boxborough Regional School District (SPR 20202607)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 13, 2020 SPR20/2607 Ms. Beth Petr Acton Boxborough Regional High School Records Access Officer 16 Charter Road Acton, MA 01720 Dear Ms. Petr: I have received the petition of Martin Y. Benson appealing the response of the Acton- Boxborough Regional School District (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 24, 2020, Mr. Benson requested text messages and emails from seven Acton-Boxborough Regional School District committee members, from February 1st to November 24th, relating to the decision to remove the Colonial mascot. Unsatisfied with the District’s response, Mr. Benson appealed and SPR20/2607 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, §10 A(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). 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

Beth Petr Page 2 SPR20/2607 January 13, 2021 The District’s December 8, 2020 response On December 8th, the District provided the following response “[b]ecause an individual school committee member is not a public entity under the public records law, it does not have an obligation to maintain the records being requested. On the advice of counsel, we cannot provide the texts and emails from members' personal accounts and phones per the law as the district does not maintain them.” Current Appeal Mr. Benson stated in his current appeal that “[i]t is well established that texts messages and emails from elected official's personal devices and personal accounts are public records under the public records law and must be produced.” Burden on Specificity As referenced above, "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). The District must clarify how these responsive records were not created or received by any public officer or employee. Further, pursuant to 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. The District is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Further, it is unclear what, if any, responsive records the District possesses. As a result, I find that the District did not satisfy its burden in responding to this records request. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the District is ordered to provide Mr. Benson with a response in compliance with the Public Records Law, its Access Regulations and this order 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.

Beth Petr Page 2 SPR20/2607 January 13, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Martin Y. Benson