Nijan Datar v. Acton-Boxborough Regional School District (SPR 20220595)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 28, 2022 SPR22/0595 Andrew Shen Director of Special Projects 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 … Previous appeals This request was the subject of previous appeals. See SPR22/0002 Determination of the Supervisor of Records (January 13, 2022) and SPR22/0230 Determination of the Supervisor of Records (February 14, 2022). The District responded on February 28, 2021. Unsatisfied with the response, Mr. Datar petitioned this office and this appeal, SPR22/0595, 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

Andrew Shen SPR22/0595 Page 2 March 28, 2022 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 District’s February 28th response The District’s February 28th response provided a text message exchange between certain Committee members. The District advised, “[b]ecause School Committee members are not issued District-owned communication devices, we do not have immediate and unilateral access to text messages that may be considered a public record. For your request for public records, we have made a good faith effort to acquire any and all text messages that would be fully responsive to your request and the materials that have been provided to you include everything that has been provided to us. Knowing our District’s responsibility to provide access to public records, we continue to provide explicit guidance and education regarding text messaging to all members of the School Committee and other District staff and officials. We have made clear that communication that can be considered public record must be conducted in a manner that the District is able to archive and produce when requested.” Current appeal In his appeal, Mr. Datar asserts, “…the School District has minimally produced two texts from the December 17, 2020 meeting … and two texts from the October 15, 2020 meeting … My public records request of November 29, 2021 sets out 200 specifically timestamped text messages — 30 from the October 15 and 170 from the December 17, 2020 meetings of the School Committee.” Based on issues raised in Mr. Datar’s appeal the District must clarify whether additional records exist. See G. L. c. 66, § 17 (“…If the custodian does not have custody of public records, the custodian shall demand delivery from any person unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian. A person who refuses or neglects to perform any duty required by this section shall be punished by fine of not more than $20.”).

Andrew Shen SPR22/0595 Page 3 March 28, 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