Dylan Lambert v. Leicester, Town of - Public Schools (SPR 20212987)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 19, 2021 SPR21/2987 Dr. Marilyn Tenzca Superintendent Leicester Public Schools 3 Washburn Square Leicester, MA 01524 Dear Superintendent Tenzca: I have received the petition of Dylan Lambert appealing the response of the Leicester Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 8, 2021, Mr. Lambert requested “records in the recent generator failing inspection and on the soot incident at the middle school.” The School provided a response on November 4, 2021, which included records. Unsatisfied with the School’s response, Mr. Lambert petitioned this office and this appeal, SPR21/2987 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

Superintendent Tenzca SPR21/2987 Page 2 November 19, 2021 The School’s November 4h Response On November 4, 2021, the School provided a response explaining, “the School District completed its search for records in response to [Mr. Lambert’s] request for a copy of ‘the records in the recent generator failing inspection and on the soot incident at the middle school within the past few weeks.’ The documents responding to those requests are attached.” In Mr. Lambert’s appeal to this office, he indicated that the School’s responses to the request for records were not complete. 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 Mr. Lambert regarding the existence of responsive records, I find it is unclear whether additional responsive records exist. The School must clarify this matter. This office continues to encourage Mr. Lambert and the School to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Mr. Lambert 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: Dylan Lambert Kimberly Rozaq, Esq.