Nijan Datar v. Acton-Boxborough Regional School District (SPR 20221236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2022 SPR22/1236 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); SPR22/0230 Determination of the Supervisor of Records (February 14, 2022) and SPR22/0595 Determination of the Supervisor of Records (March 28, 2022). The District responded on April 12, 2022. Unsatisfied with the District’s response, Mr. Datar petitioned this office and this appeal, SPR22/1236, 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 SPR22/1236 Page 2 June 10, 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 April 12th response The District’s April 12th response asserted that, “… legal counsel reached out to each person who was on the Committee in October and December 2020. Counsel asked them to confirm the following: (1) Did you text message any other member of the Committee during the meetings that occurred on October 15, 2020 and December 17, 2020? And (2) If you did text another member, I need you to send me a copy of the text message that you sent. If you have already sent me a copy of the text message, please note that in your reply. In response to this request, each individual who was a School Committee member during those meetings has responded and confirmed that there are no additional text messages that are responsive to your request that have not yet been provided.” Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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 Where the District confirms it does not have any additional records responsive to the request, accordingly, I will now consider this administrative appeal closed. If Mr. Datar 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, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Andrew Shen SPR22/1236 Page 3 June 10, 2022 . Sincerely, Rebecca S. Murray Supervisor of Records cc: Nijan Datar