Peter D. McCarthy v. Boston, City of - Public Schools (SPR 20220341)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 24, 2021 SPR22/0341 Shawn A. Williams, Esq. Director of Public Records Record Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Peter D. McCarthy, Esq. of Sherin and Lodgen appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 23, 2021, Attorney McCarthy requested the following records: 1) The full curriculum for the Boston Public School course or educational program known as the Ethnic Studies Course. 2) A copy of all materials related to the Ethnic Studies Course that are distributed to or provided to students of the Boston Public Schools … 3) A copy of all materials used to train or prepare teachers to implement or teach the Ethnic Studies Course … 4) A list, or extract of existing data that lists, the names of Boston Public Schools at which the Ethnic Studies Course was taught during the 2020-2021 City year. Previous appeal This request was the subject of a previous appeal. See SPR21/2887 Determination of the Supervisor of Records (November 10, 2022). The City responded on November 15, 2021 and November 29, 2021. Unsatisfied with the City’s responses, Attorney McCarthy petitioned this office and this appeal, SPR22/0341, 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

Shawn A. Williams, Esq. SPR22/0341 Page 2 February 24, 2022 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 agency or municipality 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding is based…”); 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). The Department’s Responses In its November 15th response, the City produced certain records and stated, “[i]t is my understanding that Boston Public Schools has provided a portion of the responsive records and is working to provide what remains…” In its November 29th response, the City advised, “I have alerted a representative from the Boston Public Schools in an effort to obtain an answer as to whether any such additional records exist.” Current Appeal In his appeal, Attorney McCarthy asserts, “[e]ight months ago, Requestor submitted a narrowly-tailored and reasonable request for copies of discrete categories of Public Records in the BPS’s possession. The BPS still has not fulfilled its statutory duty to produce them.” Based on the City’s responses, in conjunction with Attorney McCarthy’s appeal, it is unclear if the City possesses additional records responsive to the original request. 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). Conclusion Accordingly, the City is ordered to provide Attorney McCarthy 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. Attorney McCarthy may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Shawn A. Williams, Esq. SPR22/0341 Page 3 February 24, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Peter D. McCarthy, Esq.