Michelle Loubert v. Lenox, Town of - Public Schools (SPR 20212168)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 2, 2021 SPR21/2168 Melissa Falkowski Assistant Superintendent of Business & Operations Lenox Public Schools 6 Walker St. Lenox, MA 01240 Dear Ms. Falkowski: I have received the petition of Michelle Loubert appealing the response of the Lenox Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 28, 2021, Ms. Loubert requested, “a copy of the camera recording of [a] fall that occurred approximately 7:45 - 8:00 a.m. on Friday, July 9.” The School provided a response on August 4, 2021. Unsatisfied with the School’s response, Ms. Loubert petitioned this office and this appeal, SPR21/2168, 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

Melissa Falkowski SPR21/2168 Page 2 September 2, 2021 The School’s August 4th Response On August 4, 2021, the School provided a response stating, “[t]he district does not release any surveillance footage absent a court order. If [Ms. Loubert] would like, [the School] can allow [Ms. Loubert] to view the footage in the presence of district employees. Please contact [the School] to arrange a day/time if [Ms. Loubert] would like to proceed.” The School on August 26, 2021 further explained, “[p]er legal counsel direction, the district has relayed to the employee that the video clip can be viewed but a copy would not be given. To date, the employee has not requested this. Should the employee request to view the video, it is available.” Based on the School’s response, it is unclear what exemption it is claiming to withhold the video from disclosure. If the School intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). Conclusion Accordingly, the School is ordered to provide Ms. Loubert with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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: Michelle Loubert