Marion J. King v. Fairhaven, Town of - Public Schools (SPR 20210696)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 1, 2021 SPR21/0696 Vicki Oliveira Office of the Town Administrator Town of Fairhaven 40 Center Street Fairhaven, MA 02719 Dear Ms. Oliveira: I have received the petition of Marion King appealing the response of the Fairhaven Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 20, 2021, Marion King requested copies of “Massachusetts Department of Elementary and Secondary Education [DESE] Letters of Finding for [two specific] complaints . . . redacted of any confidential information.” The School responded on March 1, 2021, indicating “that such request[s] should be directed to DESE.” Unsatisfied with the School’s response, Marion King appealed and this case 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. 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

Vicki Oliveira SPR21/0696 Page 2 April 1, 2021 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. It is unclear from the School’s response if it possesses the two specified letters of finding. 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. Further, if it does possess the requested records, it is unclear which exemption the School is citing in order to withhold them. See G. L. c. 66, § 10(b )(iv) (a 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; 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). Specifically, the School must clarify whether it has possession of the requested records, and if so, under what exemption the School is withholding them. Conclusion Accordingly, the School is ordered to provide Marion King with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Marion King