Cara Busch v. New Bedford, City of - Public Schools (SPR 20212215)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 2, 2021 SPR21/2215 Heather Emsley Executive Director of Human Capital Services New Bedford Public Schools 455 County Street, Room 101 New Bedford, MA 02740 Dear Ms. Emsley: I have received the petition of Cara Busch appealing the response of the City of New Bedford Public School (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 13, 2021, Ms. Busch requested, “…all materials related to the Superintendent’s decision to retain the School Resource Officer (SRO) program, specifically: (1) Objectives of the SRO program[;] (2) Metrics of SRO program performance from 2001 to 2021[;] (3) All public comments related to SRO’s emailed to school committee meeting staff from January 2020 to July 2021[;] (4) Minutes from all school committee meetings from January 2021 to July 2021[;] (5) Minutes, recordings, and/or transcripts from all community input sessions related to SROs from January 2020 to July 2021 led or attended by the school district[;] (6) All materials related to the Rennie Center analysis, which [Ms. Busch anticipates to include] but not be limited to [definition of the problem; methodology related to the collection of evidence; alternatives to the current SRO program…projected outcomes and trade-offs; and the firm or district’s rationale as to why these findings were not presented publicly.]” The School provided a response to Ms. Busch on August 11, 2021. Unsatisfied with the School’s response, Ms. Busch petitioned this office and this appeal, SPR21/2215, was opened as a result. 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

Heather Emsley SPR21/2215 Page 2 September 2, 2021 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. The School’s August 11th Response The School’s August 11, 2021 response provided records and explained it was “in response to [Ms. Busch’s] request for information pursuant to the provisions of M.G.L. c. 66, section 10 (the ‘Public Records Law’).” In Ms. Busch’s appeal to this office, she stated, “…the vast majority of the information requested was not included. I followed up with the NBPS representative I was told to contact with any questions on August 16 and 23, but I have not heard back.” Records in existence 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). If the School does possess requested records and 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). In light of the issues raised by Ms. Busch regarding the existence of responsive records, I find it is unclear whether additional responsive records exist. The School must clarify this matter.

Heather Emsley SPR21/2215 Page 3 September 2, 2021 Conclusion Accordingly, the School is ordered to provide Ms. Busch 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, ~.F). l7 ~ ~ ~ --· ~· 0 Rebecca S. Murray Supervisor of Records cc: Cara Busch