Kevin Wood v. Georgetown, Town of - Public Schools (SPR 20222875)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 30, 2022 SPR22/2875 Carol C. Jacobs Superintendent of Schools Georgetown School Department 51 North Street Georgetown, MA 01833 Dear Superintendent Jacobs: I have received the petition of Kevin Wood appealing the response of the Georgetown School Department (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On November 1, 2022, Mr. Wood requested the following: 1. Handwritten notes of all committee members created or reviewed during the October 27, 2022 school committee meeting. 2. Electronically stored information [ESI] of all committee members created or received during the October 27, 2022 school committee meeting. The Department responded on November 15, 2022 and November 22, 2022. Unsatisfied with the Department’s responses, Mr. Wood petitioned this office and this appeal, SPR22/2875, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Carol C. Jacobs SPR22/2875 Page 2 December 30, 2022 to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The Department’s November 15th and 22nd responses In its November 15, 2022 response, in response to the first request, the Department stated that “[h]andwritten notes were provided by some members of the School Committee[.]… These notes are attached for your review.” In response to the second request, the Department stated that “[t]he only text message provided is attached here.” In its November 22, 2022 response, the Department stated that “[w]e have reached out again to [a specified committee member] and she is adamant that she has no texts per your request so I have provided you all of the records I collected to fulfill your request.” Current appeal In his appeal, Mr. Wood asserts, “…there is a Youtube link to an excerpt of the October 27, 2022 School Committee meeting that shows [a specified committee member] using her cell phone[,]” yet no records of text messages from the specified member were provided to him. In light of the above, the Department must clarify whether additional records exist. 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). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Wood with a response to the request, 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 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Wood may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kevin Wood