Martin Y. Benson v. Acton-Boxborough Regional School District (SPR 20210206)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 10, 2021 SPR21/0206 Ms. Beth Petr Records Access Officer Acton-Boxborough Regional School District 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 District committee members, from February 1, 2020 through November 24, 2020, relating to the decision to remove the Colonial mascot. Prior appeal The District provided a December 8, 2020 response stating, “[b]ecause an individual school committee member is not a public entity under the [P]ublic [R]ecords [L]aw, 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 [D]istrict does not maintain them.” Unsatisfied with the District’s response, Mr. Benson petitioned the Supervisor of Records (Supervisor), and the prior appeal, SPR20/2607, was opened. In his petition to the Supervisor, Mr. Benson asserts, “[i]t is well established that texts messages and emails from elected official’s personal devices and personal accounts are public records under the [P]ublic [R]ecords [L]aw and must be produced.” In my January 13, 2021 determination, I found it was unclear what, if any, responsive records the District possesses. In addition, I found that the District did not meet its burden of specificity in withholding the texts and emails of the District’s committee members from disclosure. I ordered the District to provide Mr. Benson with a response to the request. See SPR20/2607 Determination of the Supervisor (January 13, 2021). 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

Ms. Beth Petr SPR21/0206 Page 2 February 10, 2021 Current appeal The District provided a January 28, 2021 response to the Supervisor’s January 13th determination. The District asserts, “[w]hile [it is] still reviewing this 5th extensive records request since November 5th, it notes that many of the records you continue to seek relate to the issues that are the subject of your appeal and are enclosed for that purpose. . . .” The District’s January 28th response to Mr. Benson also asserts, “… this appeal involves facts and arguments relied upon in [Mr. Benson’s] Open Meeting Law Complaint filed with the Massachusetts Attorney General’s Office dated November 13, 2020. . . . The parties await a determination from the Attorney General’s Office in that matter.” With regard to a search of all of the documentary materials and data in the District’s possession, including its electronic and physical records, the District states, “[a]s documented in the District’s responses dated November 20, 2020 and December 11, 2020, the District located and provided approximately five hundred and thirty-nine (539) emails relevant to your request. . . . A review of text messages responsive to your request resulted in 29 pages of text messages which were located and provided to you on December 11, 2020. The scope of your request was broadened and discussed at a meeting on November 14, 2020. Our search was further detailed at that meeting and memorialized in letters dated December 8, 2020, December 9, 2020, and email dated December 21, 2020. On December 21st, you were sent 46 pages of texts, for a total of 75 pages of text messages. . . .” The District maintains that the requested emails and texts from each of the school committee members’ personal cell phones that were sent and received during an open meeting, are not in the custody and control of the District. Furthermore, the District indicates that this issue has been placed before the Office of the Attorney General’s Division of Open Government by way of an Open Meeting Law complaint. In a conversation between a Senior Attorney in the Public Records Division and the District’s Legal Counsel, Justin R. Gomes of Stoneman, Chandler & Miller, LLP, this office was informed that the District is still waiting for the AGO’s decision on the Open Meeting Law matter that pertains to the records regarding this request and appeal. It should also be noted that issues related to the release of the requested text messages and emails sent or received by school committee members at an open meeting may invoke the rules and procedures of the Open Meeting Law. An interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO). See G. L. c. 30A, § 23. -- Therefore, I decline to render a determination on Mr. Benson’s request until the AGO issues its ruling on the matter. Conclusion Accordingly, I will consider this administrative appeal closed. Mr. Benson may petition

Ms. Beth Petr SPR21/0206 Page 3 February 10, 2021 this office for an appeal on his records request after the AGO’s decision if outstanding issues remain. Sincerely, Rebecca S. Murray Supervisor of Records cc: Martin Y. Benson Justin R. Gomes, Esq., Stoneman, Chandler & Miller, LLP