Allison Jenkins v. Hamilton-Wenham Regional School District (SPR 20213178)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2021 SPR21/3178 Eric Tracy Superintendent of Schools Hamilton-Wenham Regional School District 5 School Street Wenham, MA 01984 Dear Superintendent Tracy: I have received the petition of Allison Jenkins appealing the response of the Hamilton- Wenham Regional School District (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 17, 2021, Ms. Jenkins requested the following: [1] [A copy of] a Muni’s report (or whatever accounting software the district uses) showing all expenses with vendor names and the $ values for FY19, FY20, and FY21 by FY. [2] [T]he total amount of PRE-Paid special education costs (Section 71D. Regional school districts may authorize the prepayment of tuition for a period not exceeding three months ...) for FY17, FY18, FY19, FY20, and FY21 by FY. [3] [T]he total costs of special education for all students receiving special education for FY19, FY20, and FY21 by FY. Using the exact same parameters, please provide me with the total costs of special education for all school choice students only for FY19, FY20, and FY21 by FY. Previous appeals This request was the subject of previous appeals. See SPR21/2200 Determination of the Supervisor of Records (September 13, 2021) and SPR21/2616 Determination of the Supervisor of Records (October 21, 2021). In my October 21st determination, I directed Ms. Jenkins to clarify the basis of her appeal regarding the District’s fee estimate, where the fees had been paid and records had been produced. I also directed the District to clarify whether it possesses additional records. Subsequently, the District provided a response on October 28, 2021, indicating there are no additional records. Unsatisfied with the District’s response, Ms. Jenkins petitioned this office and this appeal, SPR21/3178, was opened as a result. 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 Eric Tracy SPR21/3178 Page 2 December 14, 2021 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. The District’s October 28th response In its October 28, 2021 response, the District asserts “[t]here are no records that exist in response to your request other than the information already provided. The district’s special education expenses are allocated in the budget as a whole and are not recorded in the manner in which you requested, a student-by-student account.” The District explains, “[i]n an attempt to provide you with useful information, the district provided you with our School Choice SPED Increment data which is submitted to the Mass Department of Elementary and Secondary Education. This report was developed by the state in order for school districts to report additional special ed costs inquired by the district when educating a school choice student from another town. This report breaks down expenses on a per student basis. A school district enters the amount of specialized services being provided to a school choice student and multipl[i]es it by a state applied hourly rate. All services are summarized and entered on a per student basis. This is the only accounting of expenses that exist on a per student account for choice school students.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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).

Superintendent Eric Tracy SPR21/3178 Page 3 December 14, 2021 Conclusion Where the District has informed Ms. Jenkins that it does not possess additional documents responsive to her request, and has no duty to create records responsive to the request, the District has satisfied its burden in responding to this request. I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Allison Jenkins