Michael W. Donahue v. Newburyport, City of - Public Schools (SPR 20221695)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 5, 2022 SPR22/1695 Philip A. Littlehale Records Access Officer Newburyport Public Schools 70 Low Street Newburyport, MA 01950 Dear Mr. Littlehale: I have received the petition of Michael W. Donahue appealing the response of the Newburyport Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 9, 2022, Mr. Donahue requested the following records: [1] Video recording of [a named individual’s] professional development meeting held on or about January 13, 2021. I am also requesting the participant list[;] [2] Apology E-Mail from school principal . . .to school staff dated January 13, 2021 at approximately 7[:]34 PM; please provide replies with the E-Mail subject line of this communication. Previous Appeal This request was the subject of a previous determination. See SPR22/1527 Determination of the Supervisor of Records (July 8, 2022). This office closed the appeal upon learning that the School provided a response dated July 7, 2022 to Mr. Donahue’s request. Unsatisfied with the School’s response, Mr. Donahue petitioned this office and this appeal, SPR22/1695, 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Philip A. Littlehale SPR22/1695 Page 2 August 5, 2022 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 7th Response In its July 7, 2022 response, the School asserts that Mr. Donahue has been provided with “all responsive documents which the District has in its possession.” In a further response dated July 20, 2022, the School states that it has “conducted a diligent search of its records and provided all records in its possession that were located. To the extent other individuals may have relevant records as you suggest, those records are not in the District’s possession.” Current Appeal In his appeal, Mr. Donahue states that he is “appealing your response for Newburyport as having no records regarding my request.” Mr. Donahue requests again that the School “produce all records illustrating that this meeting took place and all materials (electronic (meeting/calendar invite(s)) or otherwise illustrating as such. I am also asking for this specific video of the training….[I] am requesting that all evidence of this training that was logged be produced[.]” Based on the School’s responses, in conjunction with Mr. Donahue’s appeal, it is unclear if there are additional records responsive to the request. 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). To the extent that additional records exist, I find the School must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the School is ordered to provide Mr. Donahue with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this

Philip A. Littlehale SPR22/1695 Page 3 August 5, 2022 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Michael W. Donahue