Dave Lunger v. Acton-Boxborough Regional School District (SPR 20212455)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 8, 2021 SPR21/2455 Andrew Shen Director of Special Projects Records Access Officer Acton-Boxborough Regional School District 15 Charter Road Acton, MA 01720 Dear Mr. Shen: I have received the petition of Dave Lunger appealing the response of the Acton- Boxborough Regional School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 27, 2021, Mr. Lunger requested: [A] Copies cellular telephone text messages … that were sent and/or received by each Acton-Boxborough Regional School Committee member and Superintendent … during the October 15, 2020, meeting of the Acton Boxborough Regional School Committee … [B] …all emails and text messages sent or received by[named person] from December 17, 2020 to December 18, 2020, that relate in any way to the creation and/or production of the Acton-Boxborough Leadership Message 2020 statement and the concurrent YouTube video which was released on December 18, 2020 … [C] Copies of … cellular telephone text messages that were sent and/or received by each Acton-Boxborough Regional School Committee member and Superintendent … during the December 17, 2020, meeting of the Acton Boxborough Regional School Committee, which occurred from at or around 7:00 PM to at or around 10:20 PM … On September 13, 2021, the School responded. Unsatisfied with the response, Mr. Lunger petitioned this office and this appeal, SPR21/2455, 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 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

Andrew Shen SPR21/2455 Page 2 October 8, 2021 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). The School’s September 13th Response In its September 13th response, the School produced certain requested documents. The School stated, “[b]ecause the District does not maintain school committee members' personal devices, we do not have access to texts on their phones.” The School further asserted, “[s]ome of the materials you seek are the subject of a pending Open Meeting Law complaint that is still pending before the Attorney General’s Office (“AGO”).” Based upon a conversation between a Public Records Division staff attorney and a School representative, it is my understanding that the complaint before the AGO is still pending. Active Administrative Proceeding 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 administrative matter before the AGO, I decline to opine on these matters 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).

Andrew Shen SPR21/2455 Page 3 October 8, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Dave Lunger