Patrick Carty v. Barnstable Public Schools (SPR 20221650)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2022 SPR22/1650 Dr. Sara Ahern Superintendent of Schools Barnstable Public Schools 230 South Street Hyannis, MA 02601 Dear Dr. Ahern: I have received the petition of Patrick Carty appealing the response of the Barnstable Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 6, 2022, Mr. Carty requested records pertaining to “the investigation into [a] West Villages Elementary School teacher.” The School responded on July 14, 2022, denying the request. Unsatisfied with the School’s response, Mr. Carty appealed, and this case was opened as a result. Status of the Requestor In his appeal petition, Mr. Carty states that he and [a named individual] are the parents of the student concerned in the investigation which is the subject of this request. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Carty’s status as a parent will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 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

Dr. Sara Ahern SPR22/1650 Page 2 August 1, 2022 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. Att’y 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. 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 July 14th Response In its July 14, 2022 response, the School states “that the records [Mr. Carty is] requesting are confidential in nature and protected information and therefore not subject to public dissemination under the Freedom of Information Act, School Policy or State Law.” I note that the School previously provided a similar response to Mr. Carty on June 3, 2022, in response to an earlier similar request, and included with that response a copy of A Guide to the Massachusetts Public Records Law. Burden of Specificity Based on the School’s response, the School has not met its burden of specificity in responding to this request. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. Specifically, it is unclear whether the School has identified all the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. Further, it is unclear which exemption(s) the School is citing in order to withhold the requested records. Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(b)(iv) (a 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 exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Mr. Carty 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

Dr. Sara Ahern SPR22/1650 Page 3 August 1, 2022 preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Patrick Carty Jane Moynihan, Esq.