Joe Difazio v. Hull, Town of - Public Schools (SPR 20212151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 7, 2021 SPR21/2151 Judith Kuehn Superintendent Hull Public Schools 18 Haborview Road Hull, MA 02045 Dear Ms. Kuehn: I have received the petition from Joe Difazio of the Patriot Ledger appealing the response of the Hull Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 4, 2021, Mr. Difazio requested, “… copies of the following records … [a]ny texts and/or digital communications that [identified person] had with [identified person], a former student …” The School responded on August 23, 2021. Unsatisfied with the response, Mr. Difazio petitioned this office and this appeal, SPR21/2151, 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(d)(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

Judith Kuehn SPR21/2151 Page 2 September 7, 2020 The School’s August 23rd Response In its August 23, 2021 response, the School claimed Exemption (c) and stated that the “… [identified person] has filed a lawsuit in Federal Court in which he identifies the individual in your request …” Mr. Difazio provided the case information pending in the Federal District Court of Massachusetts, Devine v. Town of Hull, Massachusetts (1:21-cv-11230). Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Joe DiFazio