Bill Dugan v. Nauset Public Schools District (SPR 20210101)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 1, 2021 SPR21/0101 Carol Forgione Nauset Public Schools 78 Eldredge Park Way Orleans, MA 02653 Dear Ms. Forgione: I have received the petition of Bill Dugan appealing the response of the Nauset Public Schools (School) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dugan requested “. . . records of the student population at the Nauset Schools for October 2020, including the number of Choice Program students who attend the Nauset Middle School, the number of Choice pupils who attend Nauset High School, the number of students who leave Nauset to attend charter schools, the number who leave Nauset under the Choice Program, the number of pupils who attend Nauset from Truro and P-town, and the record showing how many Choice Program pupils come to Nauset from each of the sending districts (including Truro and P-town).” Previous Appeal This request was the subject of a previous appeal. See SPR20/2361 Determination of the Supervisor of Records (December 2, 2020). In my December 2nd determination, I found the School provided a response on November 23, 2020. Unsatisfied with the School’s response, Mr. Dugan petitioned this office, and SPR21/0101 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. 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

Carol Forgione SPR21/0101 Page 2 February 1, 2021 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. The School’s November 23rd response In its November 23rd response, the School states “… I researched my email records and learned of my misunderstanding, and I forwarded the information to Mr. Dugan. There is one piece of data that was not available at the time the report was generated. I will inquire about that data tomorrow and will respond to Mr. Dugan as soon as I am able.” In his appeal, Mr. Dugan indicates “. . . Nauset has given me most of the information I asked for. The only remaining documents they have not given to me are those which answer these 2 questions…” Subsequent to the opening of this appeal, a staff attorney of the Public Records Division contacted the School to clarify if it had additional responsive records to Mr. Dugan’s request. In an email to this office on February 1, 2021, the School states “I believe I sent Mr. Dugan everything he asked for.” No Duty to Create Records 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). Please be advised, the School is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Based on the School’s February 1st response, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Bill Dugan