Nijan Datar v. Acton-Boxborough Regional School District (SPR 20220002)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 13, 2022 SPR22/0002 Andrew Shen Director of Special Projects Records Access Officer Acton-Boxborough Regional School District 15 Charter Road Acton, MA 01720 Dear Mr. Shen: I have received the petition of Nijan Datar appealing the response of the Acton- Boxborough 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 November 29, 2021, Mr. Datar requested the following records: A) Copies of any and all cellular telephone text messages … that were sent and/or re …including text messages from personal and school district phones, during the October 15, 2020, meeting of the Acton Boxborough Regional School Committee, which occurred from at or around 7:00 PM to at or around 9:56 PM, as recorded on the zoom meeting … a text message was sent from one member to another) … B) Copies of any and all cellular telephone text messages … that were sent and/or received by each Acton-Boxborough Regional School Committee member and Superintendent … including text messages from personal and school district phones, during the December 17, 2020, meeting of the Acton Boxborough Regional School Committee, which occurred from at or around 7:00 PM to at or around 10:20 PM, as recorded on the zoom meeting … The District responded on December 14, 2021. Unsatisfied with the response, Mr. Datar petitioned this office and this appeal, SPR22/0010, 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 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

Andrew Shen SPR22/0002 Page 2 January 13, 2022 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. The District’s December 14th response The District’s December 14th response advised, “[a]t this time, we are not in possession of any text messages, to the extent that they may exist, that fall within the parameters of your request. If we do come into possession of materials that are responsive to your request we will provide them to you in a timely manner.” Attorney General Office’s November 15, 2021 Open Meeting Law Decision In the decision by the Attorney General Office (AGO) relating to the Open Meeting Complaint, the AGO found that “…two Committee members … admit[ted] that they were texting with each other about the retirement of the mascot throughout the October 15 meeting. In addition, [the] Chair … disclosed that … texted … during the October 15 meeting and asked … to make a motion with respect to the mascot. The remaining eight members of the Committee state[d] that they did not communicate with another Committee member via text message during the October 15 meeting. Because the communication between … was between only two members of the Committee, which is not a quorum, we find that it did not constitute deliberation outside of a posted meeting and therefore did not violate the Open Meeting Law. See OML 2018-132; OML 2017-199; OML 2017-69.” Based upon the AGO’s review, it appears the requested text messages were sent by public officials and were related to public business. If public records are created outside the municipal offices, they must be transferred on a regular and frequent basis to secure storage in the municipal building. See G. L. c. 66, § 1. Even where it is necessary to keep original public records in a location other than the municipal building, the records access officer has a duty to maintain copies of those records within the municipal building and make the public records available in a location convenient to the general public for inspection and copying. Id. Based on the District’s response, it is unclear why the District cannot retrieve the records responsive to Mr. Datar’s request. The District must clarify this issue.

Andrew Shen SPR22/0002 Page 3 January 13, 2022 Conclusion Accordingly, the District is ordered to provide Mr. Datar with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Nijan Datar