Brian DeLacey v. Mystic Valley Regional Charter School (SPR 20213131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 13, 2021 SPR21/3131 Richard Veilleux Records Access Officer Mystic Valley Regional Charter School 4 Laurel Street Malden, MA 02148 Dear Mr. Veilleux: I have received the petition of Brian DeLacey appealing the response of the Mystic Valley Regional Charter School (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 12, 2021, Mr. DeLacey requested “records related to residential occupancy in any property owned by MVRCS.” The School provided a response on November 23, 2021. Unsatisfied with the response, Mr. DeLacey petitioned this office and this appeal, SPR21/3131, 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

Richard Veilleux, RAO SPR21/3131 Page 2 December 13, 2021 The School’s November 23rd Response On November 23, 2021, the School provided “documentation regarding the residential real estate used to house the School’s staff under previous cover last year.” The School also attached “copies of both the leases and notices to quit for [the School] recently acquired residential properties on Lebanon Street. Please be advised that these residential leases are Tenants at will, and thus could end at any time.” In its appeal to this office, Mr. DeLacey stated the response was incomplete and provided “some records for one such parcel of property. However, public records indicate MVRCS owns no less than SEVEN distinct properties believed to be providing residential occupancy.” 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. DeLacey regarding the existence of additional responsive records, I find it is unclear whether further responsive records exist. The School must clarify this matter. This office continues to encourage Mr. DeLacey 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. DeLacey 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.

Richard Veilleux, RAO SPR21/3131 Page 3 December 13, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian DeLacey Matthew Campbell, Esq.