Mira Belenkiy v. Sharon, Town of - Public Schools (SPR 20212876)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 15, 2021 SPR21/2876 Dr. Meg Dussault Records Access Officer Sharon Public Schools 77 Pond Street Sharon, MA 02067 Dear Dr. Dussault: I have received the petition of Mira Belenkiy appealing the response of the Sharon Public Schools (School) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On October 27, 2021, Ms. Belenkiy requested, “…all digital records (emails, digital documents, etc.) held by [a named individual] that contain a hyperlink to the Columbus podcast she showed her students [on] October 2021. Include both messages sent to/from her sharonschools.net account as well as her personal account(s) if they contains a hyperlink to the podcast she showed.” The School provided a response on October 29, 2021. Unsatisfied with the School’s response, Ms. Belenkiy petitioned this office and this appeal, SPR21/2876, 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. 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

Dr. Meg Dussault SPR21/2876 Page 2 November 15, 2021 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 October 29th response In its October 29, 2021 response, the School stated, “The [School] has searched for the requested records and does not possess any records responsive to your request.” Current Appeal In her current appeal, Ms. Belenkiy stated, “The school admitted in its emails that the teacher showed this podcast and they know exactly what podcast I am asking for…It is absurd to claim there are no digital documents in custody of [the named individual] with this hyperlink if she somehow managed to show it. I feel at this point the school is playing games to avoid sharing this simple public information.” Based on the School’s response, it is unclear if it possesses records responsive to the above request. Specifically, the School must clarify whether it possesses records regarding the podcast link in question. 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). Conclusion Accordingly, the School is ordered to provide Ms. Belenkiy 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: Mira Belenkiy