Colman Herman v. Boston, City of - Public Schools (SPR 20220393)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 4, 2022 SPR21/0393; SPR22/0395 Shawn A. Williams, Esq. Director of Public Records Record Access Officer School of Boston One School Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Colman Herman appealing the response of the Boston Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). SPR22/0393 On December 14, 20201 Mr. Herman requested, “… copies the final reports that deal with EQT-1 issues … EQT-2 issues … EQT-4 issues … EQT-5 issues … EQT-7 issues … EQT-8 issues … final reports that deal with issues that were referred … final reports that deal with issues that were withdrawn.” Previous appeal This request was the subject of a previous appeal. See SPR21/3384 Determination of the Supervisor of Records (January 10, 2022). The School responded on February 16, 2022. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR22/0393, was opened as a result. SPR22/0395 On November 25, 2021, Mr. Herman requested, “… copies of certain final reports from BPS Office of Equity, which is overseen by Assistant Superintendent …” On December 14, 2021 Mr. Herman modified his request for “… final reports for the [identified] case numbers … [and] [i]f the final reports do not contain the details of the cases, please provide … documents that do provide the details.” 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. SPR22/0393 Page 2 March 4, 2022 Previous appeal This request was the subject of a previous appeal. See SPR21/3252 Determination of the Supervisor of Records (December 24, 2021). The School responded on February 16, 2022. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR22/0395, 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 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); 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 School’s Responses In its December 10, 2021 response, the City cited Exemptions (a) and (c) to withhold the requested records in their entirety. In its February 16th response, the School stated that “[o]n further review, the Boston Public Schools finds the risk of victim identification to be too great to provide any portion of the responsive records, even in a redacted form.” In camera inspection In order to facilitate a determination as to the applicability of the School’s claims to withhold the requested records, the School must provide this office a representative sample of an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in

Shawn A. Williams, Esq. SPR22/0393 Page 3 March 4, 2022 camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the School is ordered to provide this office with an un-redacted copy of a representative sample of the requested records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman