Mira Belenkiy v. Sharon, Town of - Public Schools (SPR 20213036)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 30, 2021 SPR21/3036 Meg Dussault, Ed.D Interim Assistant Superintendent of Schools Records Access Officer Sharon Public Schools 75 Mountain 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). Previous Appeal 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 [in] 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. In a previous decision, I ordered the School to clarify whether it has records in their custody or control that are responsive to Ms. Belenkiy’s request. See SPR21/2876 Supervisor of Records Determination (November 15, 2021). The School provided an additional response on November 15, 2021. Unsatisfied with the School’s response, Ms. Belenkiy petitioned this office and this appeal, SPR21/3036, 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 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 SPR21/3036 Page 2 November 30, 2021 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 November 15th response In its November 15, 2021 response, the School stated, “you are asking for emails and digital documents that contain the hyperlink to the media that was shown by [the named individual]. A student in [the named individual]’s class asked a question regarding Columbus. To respond to the question, [the named individual] Googled “Christopher Columbus” and played media she thought would answer the student’s question. The media was turned on briefly, when [the named individual] realized it did not respond to the student’s question, the media was then turned off. Because this was not a part of her lesson plan, nor part of her planned curriculum, there is no record of the media in email or digital documents.” Current Appeal In her current appeal, Ms. Belenkiy stated, “…in the[ir] response, [the School] explained that the teacher used a browser to access the video. This means there are two digital records in the teacher's possession: the browser history on that machine…[and] the Google account history.” The School is advised that the definition of a public record in Massachusetts is “broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee . . .” Based on the School’s additional response, it is unclear if it possesses records responsive to the above request. Specifically, the School must clarify whether it possesses records regarding the named individual’s browser and Google account history as they relate to 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).

Dr. Meg Dussault SPR21/3036 Page 3 November 30, 2021 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