Steven Fitzgerald v. Everett, City of - Public Schools (SPR 20211889)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 9, 2021 SPR21/1889 Superintendent Priya Tahiliani Everett Public Schools 121 Vine Street Everett, MA 02148 Dear Superintendent Tahiliani: I have received the petition of Steven Fitzgerald appealing the response of the Everett Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 13, 2021, Mr. Fitzgerald requested a “copy of all emails and texts messages sent and received from [the] Everett School Committee Chairman . . . to each member of the Everett School Committee and the Administration of the Everett School Department on April 5, 2021.” The School responded on July 2, 2021, providing responsive records. Unsatisfied with the School’s response, Mr. Fitzgerald 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. 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. 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

Superintendent Priya Tahiliani SPR21/0484 Page 2 August 9, 2021 Current Appeal In his appeal petition Mr. Fitzgerald states that “[t]he response has numerous notations of hidden text and attachments that are not accessible . . . [and] no exemptions have been cited for denying [Mr. Fitzgerald] access to those attachments or the hidden text.” The School’s July 2nd Response In its July 2, 2021 response, the School provided responsive records and stated that “the enclosed documents . . . serve as all responsive documents to [Mr. Fitzgerald’s] request.” Based on the School’s response, it is unclear if it possesses additional records responsive to the above request. Specifically, the records provided by the School refer to attachments and “hidden text.” 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 whether it possesses any additional records. Conclusion Accordingly, the School is ordered to provide Mr. Fitzgerald with a response to his 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 the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Steven Fitzgerald