Larry Russell v. Newburyport, City of - Public Schools (SPR 20221952)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 7, 2022 SPR22/1952 Philip Littlehale Records Access Officer Newburyport Public Schools 70 Low Street Newburyport, MA 01950 Dear Mr. Littlehale: I have received the petition of Larry Russell 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 July 15, 2022, Mr. Russell requested “the professional training meeting conducted via Zoom by [a named individual] on January 13th, 2022, and the transcript for this meeting.” On July 22, 2022, the School responded. Unsatisfied with the response, Mr. Russell petitioned this office and this appeal, SPR22/1952, 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). 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. 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 Littlehale SPR22/1952 Page 2 September 7, 2022 The School’s July 22nd Response In its July 22, 2022 response, the School stated, [it] has not located any such recording or transcript, and the District has not contracted with [a named individual] to maintain any such records on its behalf. No law required the District to make or maintain a recording or transcript of this professional training. As such, the District is not in possession, custody, or control of any records responsive to your request. Current Appeal In his current appeal, Mr. Russell asserts that: I find it difficult to believe or let alone understand that the Newburyport School system provided this mandatory diversity training and does not have a recorded version of it or at least a transcript. Not maintaining recorded professional development trainings for evidentiary and public documentation purposes appears to be in violation of the Municipal Records Retention Schedule. In an email to this office sent on September 7, 2022, a School representative confirmed that it does not have any records responsive to Mr. Russell’s request. No Duty to Create Records 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 School does not possess any records responsive to Mr. Russell’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Russell 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).

Philip Littlehale SPR22/1952 Page 3 September 7, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Larry Russell