Commonwealth Transparency v. Springfield, City of - Public Schools (SPR 20220804)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2022 SPR22/0804 Melinda M. Phelps, Esq. Legal Counsel Office of Legal Services Springfield Public Schools 1550 Main Street – 2nd Floor Springfield, MA 01103 Dear Attorney Phelps: I have received the petition of Commonwealth Transparency appealing the response of the Springfield Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 8, 2022, Commonwealth Transparency requested emails from one named official and two members of the named official’s family. Prior Appeal The requested records were the subject of a prior appeal. See SPR22/0675 Determination of the Supervisor of Records (March 31, 2022). In my March 31st determination I found that the School intended on providing a supplemental response to Commonwealth Transparency. On April 4, 2022, the School responded. Unsatisfied with the School’s response, Commonwealth Transparency petitioned this office and this appeal, SPR22/0804, 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 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) (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, including the specific 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

Melinda M. Phelps, Esq. SPR22/0804 Page 2 April 14, 2022 exemption or exemptions upon which the 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). Current Appeal In its current appeal, Commonwealth Transparency suggests that the School has not met its burden to withhold the responsive records under Exemption (c). The School’s April 4th response In its April 4, 2022, response the School states two main arguments: (1) the requested records are not public records, (2) if the requested records are public records they can be withheld pursuant to Exemption (c). Regarding the 1st argument, the School states, “[e]mails between a government employee and her spouse and child are not made or received in an individual’s capacity as a government employee. Rather those emails are made or received in an individual’s capacity as a wife and mother.” The School further states, “…the law is very clear on this issue and supports SPS’s position. The Office of Inspector General permits, as does SPS, public employees using ‘limited, occasional, or incidental personal use of (public) computers including electronic mail and internet access.’ Just because an email is sent on a public computer doesn’t make it a public record.” The School clarifies the content of the emails stating, “[a]pproximately 300 emails have been retrieved using the above CT search terms. Except for one email, which is in the possession of CT, the requester, and dated January 4, 2022, none of the other approximately 299 emails reference any school department matter.” The School concludes, “[e]mails between a public employee and her spouse or daughter are not made in her capacity as a government employee, rather made in her private or non-official capacity and are not public records pursuant to the Secretary of the Commonwealth’s own definition.” Where the requested emails were not sent and/or received by the named individual within the scope of her employment with the Springfield Public Schools, I find the records are not subject to the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Commonwealth Transparency is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Melinda M. Phelps, Esq. SPR22/0804 Page 3 April 14, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency