Christine McCue Potts v. Medfield, Town of - Public Schools (SPR 20220890)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 25, 2022 SPR22/0890 Michael LaFrancesca Public Records Access Officer Medfield Public Schools 459 Main Street Medfield, MA 02052 Dear Mr. LaFrancesca: I have received the petition of Christine McCue Potts appealing the response of the Medfield 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 31, 2022, Ms. Potts requested “. . . a copy of deleted comments posted by [a named individual] in the Facebook group Concerned Citizens of Medfield on or about March 28, 2022 as indicated and documented by others . . . .” The School provided a response on April 8, 2022 indicating there are no responsive records. Unsatisfied with the School’s response, Ms. Potts petitioned this office and this appeal, SPR22/0890, was opened as a result. On April 20, 2022, the School provided a supplemental response reiterating its April 8th response. 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. 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

Michael LaFrancesca SPR22/0890 Page 2 April 25, 2022 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The School’s April 8th and 20th responses In its response, the School explains “[t]he records of deleted comments posted by [the named individual] in the Facebook group Concerned Citizens of Medfield on or around March 28th are not within the possession, custody, or control of the Medfield Public Schools. . . . At this time, I am not able to provide you with the post that [the named individual] posted on or around March 28th due to the post being deleted and having no access to it.” In its April 20, 2022 response, the School reiterates that it “. . . does not have access to [the named individual’s] personal social media account nor is it currently in possession or custody of the deleted Facebook comments requested . . . [The] Committee Member . . . made the Facebook postings on his own personal social media account during his own time on a non- Committee-related social media platform, and without commentary or deliberation with any other Committee member. [The] Committee Member . . . did not deliberate with other Committee members when posting the comments on Facebook.” The School is reminded that the definition of a “public record” in Massachusetts 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 the Commonwealth to serve a public purpose, unless it falls within a statutory exemption. G. L. c. 4, § 7(26). This definition does not distinguish between records. Rather, the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes “public records.” Further, public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985). At least one Court has found that the use of a public employee’s personal email address in an official capacity renders the email addresses public records. See Mechling v. City of Monroe, 152 Wn. App. 830 (2009). Records management Additionally, the School is advised that a custodian of records has an affirmative duty to maintain, secure, and preserve governmental records throughout the records life cycle. As such, safeguards must be instituted by the School to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For guidance in records management and retention, the School may consult with this Office’s Records Management Unit that is available to answer questions and assist cities, towns and state agencies with issues regarding records management and retention. The Records Management Unit may be reached at (617) 727-2816.

Michael LaFrancesca SPR22/0890 Page 3 April 25, 2022 Conclusion Accordingly, whereas the requested records no longer exist and there is no duty to create records, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Christine McCue Potts